Makkot 5

להכרזה ורבי מאיר הכרזה מישמעו ויראו נפקא

for the requirement of proclamation. When the witnesses are taken to their execution, there is a mitzva for the court to publicly proclaim the transgression for which they are being punished, in order to deter others from committing the same transgression. And Rabbi Meir derives the requirement of proclamation from the phrase in that verse: “Shall hear and fear.” The prohibition is derived from the phrase “and shall not continue to perform any more evil.”

מתני׳ משלשין בממון ואין משלשין במכות כיצד העידוהו שהוא חייב לחבירו מאתים זוז ונמצאו זוממין משלשין ביניהם אבל אם העידוהו שהוא חייב מלקות ארבעים ונמצאו זוממין כל אחד ואחד לוקה ארבעים

MISHNA: When punishing conspiring witnesses based on the verse: “As he conspired to do to his brother” (Deuteronomy 19:19), one divides the punishment of money among them, but one does not divide the punishment of lashes among them; each receives thirty-nine lashes. The mishna elaborates: How so? If the witnesses testified about someone that he owes another person two hundred dinars and they were then found to be conspiring witnesses, the witnesses divide the sum among themselves and pay a total of two hundred dinars. But if they testified about someone that he was liable to receive forty lashes and they were then found to be conspiring witnesses, each and every one of the witnesses receives forty lashes.

גמ׳ מנא הני מילי אמר אביי נאמר רשע בחייבי מלקיות ונאמר רשע בחייבי מיתות בית דין מה להלן אין מיתה למחצה אף כאן אין מלקות למחצה

GEMARA: The Gemara asks: From where are these matters, that the witnesses do not divide the punishment of lashes among themselves, derived? Abaye said: “Wicked” (Deuteronomy 25:2), is stated with regard to those liable to receive lashes, and: “Wicked” (Numbers 35:31), is stated with regard to those liable to receive a court-imposed death penalty. Just as there, with regard to those sentenced to be executed, there is no partial death penalty, so too here, with regard to those liable to receive lashes, there is no partial administering of lashes.

רבא אמר בעינן כאשר זמם לעשות לאחיו וליכא אי הכי ממון נמי ממון מצטרף מלקות לא מצטרף

Rava said: The reason the punishment of lashes is not divided is that we require fulfillment of the verse: “As he conspired to do to his brother” (Deuteronomy 19:19), and were the conspiring witness to receive fewer than thirty-nine lashes, the verse would not be fulfilled. The Gemara asks: If so, in the case of money too, one should not divide the sum between them, as each sought to cause the defendant loss of the entire sum. The Gemara answers: Sums of money paid by the witnesses can combine, as the person against whom they testified receives the entire sum that they sought to cause him to lose, but lashes administered to the witnesses cannot combine.

מתני׳ אין העדים נעשים זוממין עד שיזימו את עצמן

MISHNA: Witnesses are not rendered conspiring witnesses until the witnesses who come to render them conspiring impeach the witnesses themselves and not merely their testimony.

כיצד אמרו מעידין אני באיש פלוני שהרג את הנפש אמרו להם היאך אתם מעידין שהרי נהרג זה או ההורג זה היה עמנו אותו היום במקום פלוני אין אלו זוממין אבל אמרו להם היאך אתם מעידין שהרי אתם הייתם עמנו אותו היום במקום פלוני הרי אלו זוממין ונהרגין על פיהם

How so? A set of witnesses said: We testify with regard to a man called so-and-so that he killed a person, and they attested to the precise time and place that the murder took place. Then, a second set of witnesses came to court and said to them: How can you testify about this event? This person who was killed, or this person who killed, was with us, i.e., with the second set of witnesses, on that day in such and such place, which is not the location identified by the first set of witnesses. In that case, although the second set of witnesses contradicted the testimony of the first set, these first witnesses are not rendered conspiring witnesses. But if the second set of witnesses came to court and said to them: How can you testify about that event? You were with us on that day in such and such place. In this case, these first witnesses are rendered conspiring witnesses, and are executed on the basis of their, i.e., the second set’s, testimony.

באו אחרים והזימום באו אחרים והזימום אפילו מאה כולם יהרגו רבי יהודה אומר איסטטית היא זו ואינו נהרג אלא כת הראשונה בלבד

If other witnesses, i.e., a third set, came and corroborated the testimony of the first set of witnesses, and the second set of witnesses testified that this third set of witnesses were also with them elsewhere that day and rendered them conspiring witnesses, and similarly, if yet other witnesses, i.e., a fourth set, came and corroborated the testimony of the first set of witnesses and the second set rendered them conspiring witnesses, even if one hundred sets of witnesses were all rendered conspiring witnesses by the same second set of witnesses, all of them are executed on the basis of their testimony, as the authority of two witnesses is equivalent to the authority of numerous witnesses. Rabbi Yehuda says: This situation where a set of witnesses renders all the others conspiring witnesses is a conspiracy [istatit], as there is room for suspicion that they simply decided to impeach all witnesses who offer that testimony, and it is only the first set alone that is executed.

גמ׳ מנא הני מילי אמר רב אדא דאמר קרא והנה עד שקר העד שקר ענה עד שתשקר גופה של עדות

GEMARA: With regard to the halakha that witnesses are rendered conspiring witnesses only if the second set testifies that the first set was with them elsewhere at that time, and not if they directly contradict the testimony of the first set, the Gemara asks: From where are these matters derived? Rav Adda said: It is derived from a verse, as the verse states with regard to conspiring witnesses: “And the witness is a false witness; he testified falsely against his brother” (Deuteronomy 19:18), indicating that they are not rendered conspiring witnesses until the body of the testimony is rendered false, i.e., the testimony with regard to the actual witnesses was proven wrong, as they were not there at the time of the event in question.

דבי רבי ישמעאל תנא לענות בו סרה עד שתסרה גופה של עדות

The school of Rabbi Yishmael taught a different source for this halakha. It is stated in that passage: “If an unrighteous witness rise up against any man to bear perverted witness against him” (Deuteronomy 19:16), indicating that the witnesses are not rendered conspiring witnesses until the body of the testimony is rendered perverted, but not through contradiction of any aspect of the testimony.

אמר רבא באו שנים ואמרו במזרח בירה הרג פלוני את הנפש ובאו שנים ואמרו והלא במערב בירה עמנו הייתם חזינן אי כדקיימי במערב בירה מיחזא חזו למזרח בירה אין אלו זוממין ואם לאו הרי אלו זוממין

§ Rava says: Two witnesses came and said: So-and-so killed a person to the east of a building [bira], and two other witnesses came to court and said to the first set: But were you not with us to the west of the building at that time? How can you testify to an incident that transpired on the other side of the building? We see: If, when people are standing to the west of the building they see to the east of the building, these witnesses are not conspiring witnesses. But if it is not possible to see from one side of the building to the other, these witnesses are conspiring witnesses.

פשיטא מהו דתימא ליחוש לנהורא בריא קמשמע לן

The Gemara asks: Isn’t that obvious? The Gemara answers: Lest you say: Let us be concerned about the possibility that these witnesses have particularly good eyesight and were able to see that far despite a typical person’s being unable to see that far. Therefore, Rava teaches us that one does not take that possibility into account.

ואמר רבא באו שנים ואמרו בסורא בצפרא בחד בשבתא הרג פלוני את הנפש ובאו שנים ואמרו בפניא בחד בשבתא עמנו הייתם בנהרדעא חזינן אי מצפרא לפניא מצי אזיל מסורא לנהרדעא לא הוו זוממין ואי לאו הוו זוממין

And Rava says: If two witnesses came and said: So-and-so killed a person in Sura in the morning on Sunday, and two other witnesses came to court and said to the first set: In the evening on Sunday you were with us in Neharde’a, we see: If one is able to travel from Sura to Neharde’a from morning until evening they are not conspiring witnesses, as conceivably they could have witnessed the murder in Sura and traveled to Neharde’a by evening. And if it is not possible to travel that distance in that period of time, they are conspiring witnesses.

פשיטא מהו דתימא ליחוש לגמלא פרחא קא משמע לן

The Gemara asks: Isn’t that obvious? The Gemara answers: Lest you say: Let us be concerned about the possibility that these witnesses traveled on a flying camel, i.e., one that runs so quickly that it enabled them to traverse the distance faster than the typical person. Therefore, Rava teaches us that one need not take that possibility into account.

ואמר רבא באו שנים ואמרו בחד בשבתא הרג פלוני את הנפש ובאו שנים ואמרו עמנו הייתם בחד בשבתא אלא בתרי בשבתא הרג פלוני את הנפש ולא עוד אלא אפילו אמרו ערב שבת הרג פלוני את הנפש נהרגין דבעידנא דקא מסהדי גברא לאו בר קטלא הוא

And Rava says: If two witnesses came and said: On Sunday so-and-so killed a person, and two other witnesses came and said: You were with us on Sunday, but on Monday that same so-and-so killed that same person. Moreover, even if the second set of witnesses said: On Shabbat eve so-and-so killed that same person, the first set of witnesses is executed, despite the fact that the person against whom they testified was liable to be executed without their testimony. The reason they are liable is that at the time that they testified, conspiring to have him executed by the court, the man was not yet liable for execution by the court.

מאי קא משמע לן תנינא לפיכך נמצאת אחת מהן זוממת הוא והן נהרגין והשניה פטורה

The Gemara asks: What is Rava teaching us? We learn in a mishna (6b) with regard to two sets of witnesses who testified that one person killed another: Therefore, if one of the sets of witnesses was found to be a set of conspiring witnesses, he, the accused, and they, the conspiring witnesses, are executed by the court, and the second set of witnesses is exempt. The accused is executed because the testimony of the witnesses who were not rendered conspiring witnesses remains unchallenged. The first set of witnesses is executed because they were rendered conspiring witnesses. Clearly, conspiring witnesses may be executed even though they testified against a guilty person who was sentenced to death, provided that their testimony was delivered before he was sentenced.

סיפא מה שאין כן בגמר דין איצטריכא ליה באו שנים ואמרו בחד בשבתא נגמר דינו של פלוני ובאו שנים ואמרו בחד בשבתא עמנו הייתם אלא בערב שבת נגמר דינו של פלוני ולא עוד אלא אפילו אמרו בתרי בשבתא נגמר דינו של פלוני אין אלו נהרגין דבעידנא דקא מסהדי גברא בר קטלא הוא

The Gemara answers: It was the latter clause of this halakha, teaching that it is not so with regard to the verdict, that contains a novel element, and therefore it was necessary for Rava to teach it, and in the context of teaching the latter halakha he taught the first case as well. The latter clause is: If two witnesses came on Tuesday and said: On Sunday so-and-so was sentenced to death in a certain court, and two other witnesses came and said: On Sunday you were with us elsewhere and you could not have witnessed the verdict in that court, but on Shabbat eve the same so-and-so was sentenced to death, the first set of witnesses are not executed. Moreover, even if the second set of witnesses said: On Monday the same so-and-so was sentenced to death, the first set of witnesses are not executed, as at the time that they testified against him, on Tuesday, the man was already liable to be executed, and it is as though they conspired to kill a dead man.

וכן לענין תשלומי קנס

The Gemara adds: And likewise, the same halakha that applies with regard to witnesses who testify about one who is sentenced to death applies to the matter of payments of a fine.

באו שנים ואמרו בחד בשבתא גנב וטבח ומכר ובאו שנים ואמרו בחד בשבתא עמנו הייתם אלא בתרי בשבתא גנב וטבח ומכר משלמין ולא עוד אלא אפילו אמרו בערב שבת גנב וטבח ומכר משלמין דבעידנא דקא מסהדי גברא לאו בר תשלומין הוא

The Gemara explains: If two witnesses came and said: On Sunday this person stole and then slaughtered or sold an ox or a lamb, thereby rendering him liable to pay a fine of four or five times the value of the stolen animal (see Exodus 21:37), and then two other witnesses came and said to the first set of witnesses: On Sunday you were with us elsewhere, but on Monday this same person stole and then slaughtered or sold an ox or a lamb, the first set of witnesses pay the accused four or five times the value of the stolen animal. This is because at the time that according to their testimony he stole the animals, he had not yet stolen. Moreover, even if the second set of witnesses said: It was earlier, on Shabbat eve, that he stole and then slaughtered or sold the animals, the first set of witnesses pay the accused the amount of the fine he would have had to pay, as at the time that they testified the accused man had not yet been found liable for payment by the court, and he could have admitted his guilt and exempted himself from paying the fine. They conspired to render him liable.

באו שנים ואמרו בחד בשבתא גנב וטבח ומכר ונגמר דינו ובאו שנים ואמרו בחד בשבתא עמנו הייתם אלא ערב שבת גנב וטבח ומכר ונגמר דינו ולא עוד אלא אפילו אמרו בחד בשבתא גנב וטבח ומכר ובתרי בשבתא נגמר דינו אין משלמין דבעידנא דקא מסהדי גברא בר תשלומין הוא

But if two witnesses came on Tuesday and said: On Sunday this person stole and then slaughtered or sold an ox or a lamb and was sentenced to pay a fine of four or five times the value of the stolen animal, and two other witnesses came and said: On Sunday you were with us, but that person stole and then slaughtered or sold an ox or a lamb, and was sentenced on Shabbat eve, the first set of witnesses are exempt from payment. Moreover, even if the second set of witnesses said: On Sunday he stole and then slaughtered or sold an ox or a lamb, corroborating the testimony of the first set, and on Monday he was sentenced to pay the fine, the first set of witnesses do not pay the accused. This is because at the time that they testified against him, on Tuesday, the man had already been found liable for payment by the court, and therefore they are not conspiring witnesses.

רבי יהודה אומר איסטטית היא זו כו׳

§ The mishna teaches that Rabbi Yehuda says that if a single set of witnesses rendered numerous sets of witnesses, all of whom testified that one person killed another, conspiring witnesses, this situation is a conspiracy, and only the first set of conspiring witnesses is executed.

אי איסטטית היא זו אפילו כת ראשונה נמי לא אמר רבי אבהו שקדמו והרגו

The Gemara asks: If Rabbi Yehuda states that this situation is a conspiracy, and there is suspicion that the second set is not truthful, let even the first set of witnesses who were rendered conspiring witnesses based on their testimony also not be executed. Rabbi Abbahu said: The mishna is referring to a case where the judges already executed the first set of witnesses. Rabbi Yehuda is saying that no witnesses are executed other than the first set of witnesses, who were already executed.

מאי דהוה הוה אלא אמר רבא הכי קאמר אם אינה אלא כת אחת נהרגת אי איכא טפי אין נהרגין הא בלבד קאמר קשיא

The Gemara challenges: If so, what was, already was; there is no point in stating it as a halakha. Rather, Rava said this is what Rabbi Yehuda is saying: If it is only one set of witnesses that is rendered conspiring witnesses by the second set, the witnesses are executed; if there is more than one set they are not executed at all. The Gemara asks: But doesn’t Rabbi Yehuda say: It is only the first set alone that is executed? This indicates that contrary to Rava’s explanation, it is a case involving more than one set of witnesses. The Gemara notes: Indeed, this matter is difficult.

ההיא איתתא דאתאי סהדי ואישתקור אייתי סהדי ואישתקור אזלה אייתי סהדי אחריני דלא אישתקור אמר ריש לקיש הוחזקה זו אמר ליה רבי אלעזר אם היא הוחזקה כל ישראל מי הוחזקו

Apropos the dispute in the mishna, the Gemara relates: There was a certain woman who brought witnesses to testify on her behalf, and they were proven to be liars. She brought other witnesses, and they too were proven to be liars. She went and brought yet other witnesses, who were not proven to be liars. There is an amoraic dispute whether the testimony of the third set of witnesses is accepted. Reish Lakish said: This woman has assumed the presumptive status of dishonesty because of her repeated reliance on false witnesses; therefore, the testimony of the third set is rejected. Rabbi Elazar said to him: If she has assumed the presumptive status of dishonesty, has the entire Jewish people assumed that presumptive status? Why assume that these witnesses are dishonest?

זימנין הוו יתבי קמיה דרבי יוחנן אתא כי האי מעשה לקמייהו אמר ריש לקיש הוחזקה זו אמר ליה רבי יוחנן אם הוחזקה זו כל ישראל מי הוחזקו הדר חזיה לרבי אלעזר בישות אמר ליה שמעת מילי מבר נפחא ולא אמרת לי משמיה

The Gemara relates: On another occasion, Reish Lakish and Rabbi Elazar were sitting before Rabbi Yoḥanan and an incident similar to this one came before them for judgment. Reish Lakish said: This woman has assumed the presumptive status of dishonesty. Rabbi Yoḥanan said to him: If she has assumed the presumptive status of dishonesty, has the entire Jewish people assumed that presumptive status? When Reish Lakish heard Rabbi Yoḥanan respond in a manner identical to the earlier response of Rabbi Elazar, he turned his head and glared angrily at Rabbi Elazar, and he said to him: You heard this matter from bar Nappaḥa, i.e., Rabbi Yoḥanan, and you did not say it to me in his name? Had I known that you were stating Rabbi Yoḥanan’s opinion I would have accepted it.

לימא ריש לקיש דאמר כרבי יהודה ורבי יוחנן דאמר כרבנן

The Gemara suggests: Let us say that Reish Lakish stated his opinion that this woman has assumed the presumptive status of dishonesty in accordance with the opinion of Rabbi Yehuda, who invalidates the testimony of witnesses based on suspicion that arises due to the circumstances even though there is no proof that they lied. And Rabbi Yoḥanan stated his opinion in accordance with the opinion of the Rabbis, who do not invalidate testimony based on unsubstantiated suspicion.

אמר לך ריש לקיש אנא דאמרי לך אפילו לרבנן עד כאן לא קא אמרי רבנן התם דליכא דקא מהדר אבל הכא איכא הא דקא מהדרא

The Gemara rejects this suggestion: Reish Lakish could say to you: I state my opinion even in accordance with the opinion of the Rabbis, as the Rabbis say that one relies on witnesses who render multiple sets of witnesses conspiring witnesses only there, in the mishna, in a case where there is no one who is seeking to hire witnesses to testify on his behalf, and one could assert that their testimony is true. But here, there is this woman who is seeking to hire witnesses to testify on her behalf, which arouses suspicion that she hired them to lie on her behalf.

ורבי יוחנן אמר לך אנא דאמרי אפילו לרבי יהודה עד כאן לא קאמר רבי יהודה התם דאמרינן אטו כולי עלמא גבי הני הוו קיימי אבל הכא הני ידעי בסהדותא והני לא ידעי בסהדותא

And Rabbi Yoḥanan could say to you: I state my opinion even in accordance with the opinion of Rabbi Yehuda, as Rabbi Yehuda says that the testimony of the second set is invalid based on unsubstantiated suspicion only there, in the mishna, where circumstances exacerbate the suspicion that they are lying, as we say: Is that to say that everyone, the numerous sets of witnesses, was standing near these witnesses who testify in order to render them conspiring witnesses? But here, perhaps these witnesses who came last and were not proven to be liars know the content of the testimony, and these witnesses who were proven to be liars do not know the content of the testimony. The fact that the testimony of the first sets of witnesses was rendered void has no bearing on the status of other witnesses.

מתני׳ אין העדים זוממין נהרגין עד שיגמר הדין שהרי הצדוקין אומרים עד שיהרג שנאמר נפש תחת נפש

MISHNA: The conspiring witnesses are executed only if they are rendered conspiring witnesses after the verdict of the accused is concluded. This is in contrast to the opinion of the Sadducees, as the Sadducees say: Conspiring witnesses are executed only if they are rendered conspiring witnesses after the accused is killed on the basis of their testimony, as it is stated: “A life for a life” (Exodus 21:23; see Deuteronomy 19:21).

אמרו להם חכמים והלא כבר נאמר ועשיתם לו כאשר זמם לעשות לאחיו והרי אחיו קיים ואם כן למה נאמר נפש תחת נפש יכול משעה שקבלו עדותן יהרגו תלמוד לומר נפש תחת נפש הא אינם נהרגין עד שיגמר הדין

The Rabbis said to the Sadducees: But wasn’t it already stated: “And you shall do to him as he conspired to do to his brother” (Deuteronomy 19:19), and this latter verse indicates that his accused brother is alive? And if so, why is it stated: “A life for a life”? One might have thought that if they are rendered conspiring witnesses from the moment the judges accepted their testimony in court, they will be executed, even though no verdict was concluded. Therefore, the verse states: “A life for a life,” teaching that they are executed only if they are rendered conspiring witnesses after the verdict of the accused will be concluded, from the moment that the court is on the verge of taking his life.

גמ׳ תנא בריבי אומר לא הרגו נהרגין הרגו אין נהרגין אמר אביו בני לאו קל וחומר הוא

GEMARA: It is taught with regard to the halakha in the mishna that a Sage referred to as the Distinguished [Beribbi] says: If the conspiring witnesses have not yet killed the accused with their testimony they are executed, but if they killed the accused with their testimony they are not executed. The father of that Sage, who was also a prominent Sage, said to him: My son, is this matter not derived through an a fortiori inference? If, when they were unsuccessful in their attempt to kill the accused they are executed, all the more so if they were successful in killing him should they be executed.

אמר לו לימדתנו רבינו שאין עונשין מן הדין דתניא איש אשר יקח [את] אחתו בת אביו או בת אמו אין לי אלא בת אביו שלא בת אמו ובת אמו שלא בת אביו בת אמו ובת אביו מנין תלמוד לומר ערות אחתו גלה

He said to his father: You have taught us, our teacher, that one does not administer punishment based on an a fortiori inference. The punishment must be stated in the Torah. As it is taught in a baraita that among the relatives with whom engaging in intercourse is forbidden it states: “A man who takes his sister, the daughter of his father or the daughter of his mother” (Leviticus 20:17): I have derived only the daughter of his father who is not the daughter of his mother, or the daughter of his mother who is not the daughter of his father. From where is it derived that one is liable for engaging in intercourse with his sister who is both the daughter of his mother and the daughter of his father? It is derived from a verse, as the verse states: “He has uncovered the nakedness of his sister” (Leviticus 20:17), indicating that one is liable for engaging in intercourse with any sister.

עד שלא יאמר יש לי בדין אם ענש על בת אביו שלא בת אמו ובת אמו שלא בת אביו בת אביו ובת אמו לא כל שכן הא למדת שאין עונשין מן הדין

The baraita continues: Even if the verse had not stated that one is liable for engaging in intercourse with his sister, i.e., one’s sister with whom he has both parents in common, I have proof from an a fortiori inference: If the Torah punished an individual for engaging in intercourse with the daughter of his father who is not the daughter of his mother, or for engaging in intercourse with the daughter of his mother who is not the daughter of his father, is it not all the more so clear that he should be punished for engaging in intercourse with his sister who is both the daughter of his father and the daughter of his mother? From the fact that the Torah explicitly prohibited intercourse in that case and did not rely on the inference, you learn that one does not administer punishment based on an a fortiori inference.

עונש שמענו אזהרה מנין תלמוד לומר ערות אחותך בת אביך או בת אמך אין לי אלא בת אביו שלא בת אמו ובת אמו שלא בת אביו בת אביו ובת אמו מנין תלמוד לומר ערות בת אשת אביך מולדת אביך אחותך הוא

The baraita continues: We heard from that verse (Leviticus 20:17) the punishment for engaging in intercourse with one’s sister with whom he has both parents in common. From where is the prohibition against engaging in those acts of intercourse derived? It is derived from a verse, as the verse states: “The nakedness of your sister, the daughter of your father or the daughter of your mother…you shall not uncover” (Leviticus 18:9). I have derived the prohibition against engaging in intercourse only with the daughter of his father who is not the daughter of his mother, or with the daughter of his mother who is not the daughter of his father. From where do I derive a prohibition against engaging in intercourse with his sister who is both the daughter of his father and the daughter of his mother? It is derived from a verse, as the verse states: “The nakedness of the daughter of your father’s wife, born of your father; she is your sister” (Leviticus 18:11), indicating that engaging in intercourse with any sister is prohibited.

עד שלא יאמר יש לי מן הדין מה אם הוזהר על בת אמו שלא בת אביו ובת אביו שלא בת אמו בת אביו ובת אמו לא כל שכן הא למדת שאין מזהירין מן הדין

The baraita continues: Even if the verse had not stated that engaging in intercourse with one’s sister with whom he has both parents in common is forbidden, I have proof for this from an a fortiori inference: If one was prohibited from engaging in intercourse with the daughter of his mother who is not the daughter of his father, and with the daughter of his father who is not the daughter of his mother, is it not all the more so clear that he is prohibited from engaging in intercourse with his sister who is both the daughter of his father and the daughter of his mother? You learn from this that one does not derive a prohibition based on an a fortiori inference.

חייבי מלקיות מנין תלמוד לומר רשע רשע

The baraita continues: From where is it derived that one does not administer punishment to those liable to receive lashes based on an a fortiori inference, and that the principle is not limited to capital punishment? The verse states a verbal analogy between the term “wicked” written with regard to those liable to be executed and the term “wicked” written with regard to those liable to receive lashes. With regard to those liable to be executed, it is written: “Who is wicked and deserves to die” (Numbers 35:31). With regard to those liable to receive lashes, it is written: “And it shall be if the wicked is deserving of lashes” (Deuteronomy 25:2).

חייבי גליות מנין אתיא רצח רצח

From where is it derived that one does not administer punishment to those liable to be exiled based on an a fortiori inference? It is derived by means of a verbal analogy between the term “murderer” written with regard to those who kill intentionally (see Numbers 35:21) and the term “murderer” written with regard to those who kill unwittingly (see Numbers 35:11). The conclusion is that one does not administer any punishment based on an a fortiori inference.

תניא אמר רבי יהודה בן טבאי אראה בנחמה אם לא הרגתי עד זומם להוציא מלבן של צדוקים שהיו אומרים אין העדים זוממין נהרגין עד שיהרג הנדון

§ Apropos the dispute between the Sadducees and the Sages, it is taught in a baraita: Rabbi Yehuda ben Tabbai says in the form of an oath: I will not see the future consolation of the Jewish people if I did not as a member of the court kill a single conspiring witness, in order to eradicate this reasoning from the hearts of the Sadducees, who would say: The conspiring witnesses are executed only if they are rendered conspiring witnesses after the accused will be killed. Rabbi Yehuda ben Tabbai killed the conspiring witness while the accused remained alive.

אמר לו שמעון בן שטח אראה בנחמה אם לא שפכת דם נקי שהרי אמרו חכמים אין העדים זוממין נהרגין עד שיזומו שניהם ואין לוקין עד שיזומו שניהם

Shimon ben Shataḥ said to him: I will not see the consolation of the Jewish people if you did not shed thereby innocent blood, as the Sages said: Conspiring witnesses are not executed unless both of them are rendered conspiring witnesses, and they are not flogged unless both of them are rendered conspiring witnesses. In this case, only one was rendered a conspiring witness.

מיד קבל עליו רבי יהודה בן טבאי שאינו מורה הוראה אלא לפני שמעון בן שטח וכל ימיו של רבי יהודה בן טבאי היה משתטח על קברו של אותו העד והיה קולו נשמע וכסבורין העם לומר קולו של הרוג אמר קולי שלי הוא תדעו למחר הוא מת אין קולו נשמע

Rabbi Yehuda ben Tabbai immediately accepted a commitment upon himself that he would issue a halakhic ruling only when he was before Shimon ben Shataḥ, to avoid mistakes in the future. And throughout all of Rabbi Yehuda ben Tabbai’s days he would tearfully prostrate himself on the grave of that witness whom he executed, to request forgiveness for having done so, and his voice was heard from a distance. And the people thought to say that it was the voice of the executed witness that was heard. Rabbi Yehuda ben Tabbai said to them: It is my voice. Know that this is so, as tomorrow, i.e., sometime in the future, he, referring to himself, will die, and his voice will no longer be heard.

אמר ליה רב אחא בריה דרבא לרב אשי דלמא בדינא קם בהדיה אי נמי פיוסי פייסיה

Rav Aḥa, son of Rava, said to Rav Ashi: The fact that the voice will cease after Rabbi Yehuda ben Tabbai’s death is inconclusive as proof that the voice is not that of the executed witness. Perhaps the reason that the voice of the executed person will no longer be heard is that he confronted Rabbi Yehuda ben Tabbai in trial before the heavenly court, obviating the need for crying from his grave. Alternatively, perhaps Rabbi Yehuda ben Tabbai appeased the executed witness in the World-to-Come, and there is silence because no grievances remained.

מתני׳ על פי שנים עדים או שלשה עדים יומת המת אם מתקיימת העדות בשנים למה פרט הכתוב בשלשה אלא להקיש שלשה לשנים מה שלשה מזימין את השנים אף השנים יזומו את השלשה ומנין אפילו מאה תלמוד לומר עדים

MISHNA: It is written: “At the mouth of two witnesses or three witnesses shall he who is to die be executed” (Deuteronomy 17:6). The question is: If the testimony is valid with two witnesses, why did the verse specify that it is valid with three? Rather, it is to juxtapose and liken three to two: Just as three witnesses can render the two witnesses conspiring witnesses, so too, the two witnesses can render the three wit-nesses conspiring witnesses. And from where is it derived that two witnesses can render even one hundred witnesses conspiring witnesses? It is derived from a verse, as the verse states: “Three witnesses.” Since the verse is obviously discussing witnesses, the term witnesses is superfluous, as it could have stated: Two or three. The term “witnesses” teaches that two witnesses can render a set of witnesses conspiring witnesses irrespective of their number.

רבי שמעון אומר מה שנים אינן נהרגין עד שיהיו שניהם זוממין אף שלשה אינן נהרגין עד שיהיו שלשתם זוממין ומנין אפילו מאה תלמוד לומר עדים

Rabbi Shimon says that three witnesses are mentioned in the verse in order to teach: Just as two witnesses who testified that a person is liable to be executed are not killed for this testimony unless both of them are found to be conspiring witnesses, so too, three witnesses who testified together are not killed unless all three of them are found to be conspiring witnesses. And from where is it derived that the same halakha applies even to one hundred witnesses? It is derived from a verse, as the verse states: “Three witnesses.” The superfluous term “witnesses” teaches that the status of all witnesses who come to court as a single set of witnesses is that of one testimony with regard to this halakha.

רבי עקיבא אומר לא בא השלישי להקל אלא להחמיר עליו ולעשות דינו כיוצא באלו

Rabbi Akiva says: The third witness mentioned in this verse does not come for the judges to be lenient concerning him; rather, its mention comes for the judges to be stringent concerning him and to render his halakhic status like that of these two witnesses who testified with him. One could claim that since the testimony of the third witness is superfluous, as the testimony of the other two witnesses sufficed, the third witness and any other witnesses beyond the first two should be exempt. Therefore, the verse teaches that since he testified with them and was rendered a conspiring witness with them, he too is executed.

ואם כן ענש הכתוב לנטפל לעוברי עבירה כעוברי עבירה על אחת כמה וכמה ישלם שכר לנטפל לעושי מצוה כעושי מצוה

One can learn a moral from this halakha: And if the verse punished one who associates with transgressors with a punishment like the one received by the transgressors, even though his role in the transgression is ancillary, all the more so will God pay a reward to one who associates with those who perform a mitzva like the reward of those who perform the mitzva themselves, even though his role in performing the mitzva is ancillary.

ומה שנים נמצא אחד מהן קרוב או פסול עדותן בטלה אף שלשה נמצא אחד מהן קרוב או פסול עדותן בטלה מנין אפילו מאה תלמוד לומר עדים

The mishna cites another derivation based on the juxtaposition of two to three: And just as with regard to two witnesses, if one of them is found to be a relative or is otherwise disqualified, their entire testimony is voided, as it is no longer the testimony of two witnesses, so too, with regard to three witnesses who came to testify as one set, if one of them is found to be a relative or is otherwise disqualified, their entire testimony is voided, even though two valid witnesses remain. From where is it derived that the same halakha applies even in the case of one hundred witnesses? It is derived from a verse, as the verse states: “Witnesses.”