Sanhedrin 78

ואי לאו כחו הוא תיזיל לתחת אלא כח כחוש הוא

Rav Pappa answered: And were it not for the force of his action, the stone would go down and not to the side. Rather, although it is a weak force, the force of his action is a partial cause of the damage caused by the stone going to the side; therefore, he is liable.

תנו רבנן הכוהו עשרה בני אדם בעשרה מקלות ומת בין בבת אחת בין בזה אחר זה פטורין רבי יהודה בן בתירא אומר בזה אחר זה האחרון חייב מפני שקירב את מיתתו

The Sages taught: If ten people struck an individual with ten sticks and as a result of the beating he died, whether they beat him simultaneously, or whether they beat him one after the other, they are exempt from liability for killing him, as two people are not liable for an action that they performed together. Rabbi Yehuda ben Beteira says: If they struck him one after the other, the one who struck him last is liable, because he hastened his death.

אמר רבי יוחנן ושניהם מקרא אחד דרשו ואיש כי יכה כל נפש אדם רבנן סברי כל נפש עד דאיכא כל נפש ורבי יהודה בן בתירא סבר כל נפש כל דהוא נפש

Rabbi Yoḥanan says: And both Rabbis, i.e., the first tanna and Rabbi Yehuda ben Beteira, interpreted the same verse in drawing their halakhic conclusion. The verse states: “And a man who strikes any soul mortally, he shall be put to death” (Leviticus 24:17). The Rabbis hold that “any soul” means that one is liable for murder only when there is an entire soul, i.e., when the murderer alone is responsible for taking the entire life of the victim. And Rabbi Yehuda ben Beteira holds that “any soul” means that one is liable for murder for taking any soul, even if the victim had already been beaten and was close to death.

אמר רבא הכל מודים בהורג את הטריפה שהוא פטור בגוסס בידי שמים שהוא חייב לא נחלקו אלא בגוסס בידי אדם מר מדמי ליה לטריפה ומר מדמי ליה לגוסס בידי שמים

§ Rava says: All concede that in the case of one who kills one who has a wound that will cause him to die within twelve months [tereifa] he is exempt from liability, as in a certain sense the legal status of the victim is that of a dead person. All concede in a case where one kills an individual dying from an illness caused at the hand of Heaven that he is liable, as no other individual took action contributing to his death, and the murderer alone took his remaining soul. They disagree only in a case where one kills an individual dying from injury caused at the hand of a person. One Sage, the Rabbis, likens this case to the case of a tereifa, and therefore rules that the one who kills him is exempt. And one Sage, Rabbi Yehuda, likens this case to the case of an individual dying from an illness caused at the hand of Heaven, and therefore rules that the one who kills him is liable.

מאן דמדמי ליה לטריפה מאי טעמא לא מדמי ליה לגוסס בידי שמים גוסס בידי שמים לא איתעביד ביה מעשה האי איתעביד ביה מעשה

The Gemara asks: As for the one who likens this case to the case of a tereifa, what is the reason that he does not liken it to the case of an individual dying from an illness caused at the hand of Heaven? The Gemara answers: In the case of an individual dying from an illness caused at the hand of Heaven, no action was performed by a person to kill him, whereas in this case of an individual dying from injury caused at the hand of a person, an action was performed by an individual to kill him. Therefore, it is a case of two people who performed an action together, and they are not liable.

ומאן דמדמי ליה לגוסס בידי שמים מאי טעמא לא מדמי ליה לטריפה טריפה מחתכי סימנים הא לא מחתכי סימנים

The Gemara asks: And as for the one who likens this case to the case of an individual dying from an illness caused at the hand of Heaven, what is the reason that he does not liken it to a tereifa? The Gemara answers: In the case of a tereifa, his status is like that of one whose organs, the trachea and the esophagus, are cut, who is considered to be slaughtered. The status of this individual dying from injury caused at the hand of a person is not like that of one whose organs, the trachea and the esophagus, are cut, as there is no particular defect; rather, he is like one suffering from general frailty, like any frail or elderly individual.

תני תנא קמיה דרב ששת ואיש כי יכה כל נפש אדם להביא המכה את חבירו ואין בו כדי להמית ובא אחר והמיתו שהוא חייב

A tanna taught a baraita before Rav Sheshet: The verse that states: “And a man who strikes any soul mortally, he shall be put to death” (Leviticus 24:17), serves to include the case of one who strikes another and it is a blow in which there is not sufficient force to kill, and then another individual comes and kills him; the verse teaches that the second individual is liable.

אין בו כדי להמית פשיטא אלא יש בו כדי להמית ובא אחר והמיתו שהוא חייב וסתמא כרבי יהודה בן בתירא

The Gemara challenges: If the first individual struck him with a blow in which there is not sufficient force to kill, this halakha is obvious, as the first did not perform an act of killing at all, and it is only the second who killed him. Rather, emend the baraita to teach: The verse serves to include the case of one who strikes another and it is a blow in which there is sufficient force to kill, and then another individual comes and kills him; the verse teaches that the second individual is liable. And this unattributed baraita is in accordance with the opinion of Rabbi Yehuda ben Beteira, who holds that one who completes the killing of an individual is liable to be executed as a murderer.

אמר רבא ההורג את הטריפה פטור וטריפה שהרג בפני בית דין חייב שלא בפני בית דין פטור

Rava says: One who kills a tereifa is exempt as it is as though he killed a dead person. And as for a tereifa who kills another individual, if he killed him before the judges in court, he is liable to be executed. If the killing was not before the judges in court, he is exempt.

בפני בית דין מאי טעמא חייב דכתיב ובערת הרע מקרבך שלא בפני בית דין פטור דהויא לה עדות שאי אתה יכול להזימה וכל עדות שאי אתה יכול להזימה לא שמה עדות

The Gemara explains: In the case of a tereifa who killed before the court, what is the reason that he is liable? He is liable, as it is written: “And you shall eradicate the evil from your midst” (Deuteronomy 13:6), from which it is derived that there is a mitzva for the court to eradicate evil that it witnesses firsthand. In the case where the killing was not before the judges in court, he is exempt, as any testimony against the tereifa is testimony that you cannot render conspiratory testimony. Even if the witnesses testifying that the tereifa committed murder are found to be conspiring witnesses, they cannot be executed, as they conspired to kill a tereifa. And any testimony that you cannot render conspiratory testimony is not characterized as testimony, and is not accepted in court.

ואמר רבא הרובע את הטריפה חייב טריפה שרבע בפני בית דין חייב שלא בפני בית דין פטור בפני בית דין חייב דכתיב ובערת הרע מקרבך שלא בפני בית דין פטור דהויא לה עדות שאי אתה יכול להזימה

And Rava says: One who sodomizes a male who is a tereifa is liable to be executed for committing an act of sodomy. And as for a tereifa who sodomizes a male, if he does so before the judges in court, he is liable to be executed. If the act of sodomy was not before a court, he is exempt. The Gemara explains: If he committed an act of sodomy before the court, he is liable, as it is written: “And you shall eradicate the evil from your midst.” If the act of sodomy was not before a court, he is exempt, as any testimony against a tereifa is testimony that you cannot render conspiratory testimony.

הא תו למה לי היינו הך הרובע את הטריפה איצטריכא ליה מהו דתימא ליהוי כמאן דמשמש מת וליפטר קא משמע לן דמשום הנאה הוא והא אית ליה הנאה

The Gemara asks: Why do I also need this ruling? This case of sodomy is identical to that case of murder; why then does Rava cite two cases with regard to capital transgressions involving a tereifa? The Gemara answers: It was necessary for him to mention the case of one who sodomizes a tereifa, as there is a novel element introduced in that halakha. Lest you say: Let the status of one who sodomizes a male who is a tereifa be like one who engages in necrophilia, and let him be exempt from execution. To counter this, Rava teaches us that his liability is due to the pleasure that he experiences, and this man who sodomizes a tereifa has pleasure, as, although the legal status of a tereifa is that of a dead person in certain senses, he is, in fact, alive.

ואמר רבא עדים שהעידו בטריפה והוזמו אין נהרגין עדי טריפה שהוזמו נהרגין רב אשי אמר אפילו עדי טריפה שהוזמו אין נהרגין לפי שאינן בזוממי זוממין

And Rava says: Witnesses who testified with regard to a tereifa that he committed a capital transgression, and then they were rendered conspiring witnesses are not executed, as they conspired to kill one whose status is that of a dead person. Witnesses who are themselves tereifa who were rendered conspiring witnesses are executed. Rav Ashi says: Even witnesses who are themselves tereifa who were rendered conspiring witnesses are not executed, due to the fact that they are not susceptible to a situation where witnesses who rendered them conspiring witnesses can themselves be rendered conspiring witnesses. Witnesses who render the witnesses who are themselves tereifa conspiring witnesses who then are rendered conspiring witnesses are not executed, because they sought to kill a tereifa, whose status is that of a dead person. Therefore, their testimony is testimony that you cannot render conspiratory testimony and is disregarded.

ואמר רבא שור טריפה שהרג חייב ושור של אדם טריפה שהרג פטור מאי טעמא אמר קרא השור יסקל וגם בעליו יומת כל היכא דקרינא ביה וגם בעליו יומת קרינן ביה השור יסקל וכל היכא דלא קרינן ביה וגם בעליו יומת לא קרינן ביה השור יסקל

And Rava says: An ox that is a tereifa that killed an individual is liable to be executed, like any animal that kills a person. And an ox belonging to a person who is a tereifa that killed an individual is exempt. What is the reason for this halakha? It is as the verse states: “The ox shall be stoned and its owner shall also be put to death” (Exodus 21:29). Based on the juxtaposition between the owner and his ox it is derived: Anywhere that we can read concerning the situation: “And its owner shall also be put to death,” we read, i.e., apply, concerning it: “The ox shall be stoned.” And anywhere that we cannot read concerning it: “And its owner shall also be put to death,” we do not read concerning it: “The ox shall be stoned.” Since the owner of the ox cannot be executed, as he is a tereifa, his ox is also not liable to be stoned.

רב אשי אמר אפילו שור טריפה נמי שהרג פטור מאי טעמא כיון דאילו בעלים הוו פטירי שור נמי פטור

Rav Ashi says: Even an ox that is a tereifa that killed an individual is exempt. What is the reason for this halakha? Based on the juxtaposition between the ox and the owner, since if the owner were a tereifa he would be exempt, an ox that is a tereifa that killed an individual is also exempt.

שיסה בו את הכלב וכו׳ אמר רב אחא בר יעקב כשתמצא לומר לדברי רבי יהודה ארס נחש בין שיניו הוא עומד לפיכך מכיש בסייף ונחש פטור

§ The mishna teaches: If one set a dog against an individual and the dog killed him, or if one set a snake against an individual and the snake killed him, the one who set the dog or the snake is exempt from punishment. If he imbedded the snake’s fangs into another person and caused the snake to bite him and kill him, Rabbi Yehuda deems him liable to be executed, and the Rabbis exempt him. Rav Aḥa bar Ya’akov says: When you analyze the matter you will find that according to the statement of Rabbi Yehuda, venom of a snake stands within its fangs, and in this case the entire action is performed by the individual who imbeds the fang in the other person’s skin. The snake is passive. Therefore, the one who causes the snake to bite is liable to be executed by beheading with a sword as a murderer, and the snake is exempt.

לדברי חכמים ארס נחש מעצמו הוא מקיא לפיכך נחש בסקילה והמכיש פטור

According to the statement of the Rabbis, venom of a snake is discharged by the snake itself. The snake directly causes the death, while the individual who imbeds the fang is merely an indirect cause. Consequently, the snake is executed by stoning, and the one who caused the snake to bite is exempt from execution.

מתני׳ המכה את חבירו בין באבן בין באגרוף ואמדוהו למיתה והיקל ממה שהיה ולאחר מכאן הכביד ומת חייב רבי נחמיה אומר פטור שרגלים לדבר

MISHNA: In the case of one who strikes another, whether he does so with a stone or with his fist, and the doctors assessed his condition, estimating that it would lead to death, and then his condition eased from what it was, and the doctors revised their prognosis and predicted that he would live, and thereafter his condition worsened and he died, the assailant is liable to be executed as a murderer. Rabbi Neḥemya says: He is exempt, as there is a basis for the matter of assuming that he is not liable. Since the victim’s condition eased in the interim, a cause other than the blow struck by the assailant ultimately caused his death.

גמ׳ תנו רבנן את זו דרש רבי נחמיה ׳אם יקום והתהלך בחוץ

GEMARA: The Sages taught: Rabbi Neḥemya interpreted this verse in arriving at his ruling. It is written: “If he rises and walks outside

על משענתו ונקה המכה׳ וכי תעלה על דעתך שזה מהלך בשוק וזה נהרג אלא זה שאמדוהו למיתה והקל ממה שהיה ולאחר כך הכביד ומת שהוא פטור

upon his staff, then he that struck him is absolved; only for his loss of livelihood shall he give and he shall heal him” (Exodus 21:19). The phrase: “Then he that struck him is absolved,” is superfluous; would it enter your mind to say that this individual whom he struck is walking in the marketplace, and that individual who struck him will be executed as a murderer? Rather, this is referring to a case where the doctors assessed his condition, saying that it would lead to death, and his condition eased somewhat from what it was and he walked in the marketplace, and thereafter his condition worsened and he died, and the verse is teaching that he is exempt.

ורבנן האי ונקה המכה מאי דרשי ביה מלמד שחובשין אותו

The Gemara asks: And as for the Rabbis who disagree with Rabbi Neḥemya and hold that he is liable in that case, what do they interpret from that phrase: “Then he that struck him is absolved”? The Gemara explains that according to the Rabbis, the verse teaches that they incarcerate him until the fate of the victim can be determined, and the phrase: “Then he that struck him is absolved,” means that he is freed from incarceration.

ורבי נחמיה חבישה מנא ליה יליף ממקושש

The Gemara asks: And as for Rabbi Neḥemya, from where does he derive the halakha of incarceration? The Gemara answers: He derives it from the incident of the wood gatherer in the wilderness with regard to whom it is written: “And they placed him under guard” (Numbers 15:34).

ורבנן נמי לילפי ממקושש מקושש בר קטלא הוא ומשה לא הוה ידע קטליה במאי לאפוקי האי דלא ידעינן אי בר קטלא הוא אי לאו בר קטלא הוא

The Gemara challenges: And the Rabbis too, let them derive the halakha of incarceration from the incident of the wood gatherer. The Gemara explains: With regard to the wood gatherer, he was incarcerated because it was known from the outset that he was liable to be killed, and Moses did not know with what form of capital punishment his death would be implemented. This is to the exclusion of this individual who struck another, with regard to whom we do not know if he is liable to be killed or if he is not liable to be killed. Therefore, one cannot derive the halakha in this case from the case of the wood gatherer.

ורבי נחמיה יליף ממגדף דלא הוה ידע אי בר קטלא הוא וחבשוהו

The Gemara asks: And Rabbi Neḥemya, from where does he derive the halakha? He too should not be able to derive the halakha from the case of the wood gatherer. The Gemara answers: Rabbi Neḥemya derives the halakha with regard to one who strikes another from the incident of the blasphemer (see Leviticus 24:12), where Moses did not know if he was liable to be killed, and he nevertheless imprisoned the blasphemer.

ורבנן מגדף הוראת שעה היתה

The Gemara asks: And the Rabbis, why don’t they derive the halakha from the incident of the blasphemer? The Gemara answers: The Rabbis hold that the case of the blasphemer was a provisional edict.

כדתניא יודע היה משה רבינו שהמקושש במיתה שנאמר ׳מחלליה מות יומת׳ אלא לא היה יודע באיזו מיתה נהרג שנאמר ׳כי לא פרש׳ וגו׳ אבל מגדף לא נאמר בו אלא ׳לפרש להם על פי ה שלא היה משה יודע אם הוא בן מיתה כל עיקר אם לאו

The difference between the uncertainty in the case of the wood gatherer and the uncertainty in the case of the blasphemer is as it is taught in a baraita: Moses our teacher knew that the wood gatherer was liable to be sentenced to death, as it is stated: “And you shall observe the Shabbat as it is sacred to you; one who desecrates it shall be put to death” (Exodus 31:14). But he did not know with which death penalty he was to be killed, as it is stated: “And they placed him under guard, as it had not been declared what should be done to him” (Numbers 15:34). But concerning the blasphemer it is stated only: “And they placed him under guard that it might be declared to them according to the Lord” (Leviticus 24:12), as Moses did not know if the blasphemer was liable to be killed at all, or not.

בשלמא לרבי נחמיה היינו דכתיבי תרי אומדני חד אמדוהו למיתה וחיה וחד אמדוהו למיתה והקל ממה שהיה אלא לרבנן תרי אומדני למה לי

The Gemara asks: Granted, according to Rabbi Neḥemya, that is the reason that two assessments are written. It is written in one verse: “And if men quarrel and one strikes the other with a stone or with his fist, and he did not die but is bedridden” (Exodus 21:18), indicating that after the initial blow the victim is assessed to determine whether or not he is expected to die. In the following verse it is written: “If he rises and walks outside upon his staff, then he that struck him is absolved” (Exodus 21:19), indicating that there is an additional assessment to determine whether or not he fully recovers. One verse is where they assessed his condition, saying that it would lead to death, and he recovered fully; and one verse is where they assessed his condition, saying that it would lead to death, and his condition eased from what it was and he died thereafter. But according to the Rabbis, why do I need two assessments?

חד אמדוהו למיתה וחיה וחד אמדוהו לחיים ומת

The Gemara answers: According to the Rabbis, one assessment is where they assessed his condition, saying that it would lead to death and he recovered fully, in which case the assailant is certainly not executed but pays compensation. And one assessment is where they assessed his condition, saying that it would lead to life and he died, in which case the assailant is also not executed but pays compensation.

ורבי נחמיה אמדוהו לחיים ומת לא צריך קרא שהרי יצא מבית דין זכאי

The Gemara asks: And Rabbi Neḥemya, from where does he derive these two halakhot? The Gemara answers: He holds that in the case where they assessed his condition, saying that it would lead to life, and he died, one does not need an explicit verse to exempt the assailant from execution, as he emerged from the court after the first hearing innocent when they predicted that the victim would live, and the court does not rescind its initial ruling and convict him.

תנו רבנן המכה את חבירו ואמדוהו למיתה וחיה פוטרין אותו אמדוהו למיתה והקל ממה שהיה אומדין אותו אומד שני לממון ואם לאחר כן הכביד ומת הלך אחר אומד האמצעי דברי רבי נחמיה וחכמים אומרים אין אומד אחר אומד

The Sages taught: In the case of one who strikes another and they assessed his condition, saying that it would lead to death, and he recovered fully, the court exempts the assailant. If they assessed his condition saying that it would lead to death and his condition eased from what it was, they assess the victim with a second assessment to determine the monetary restitution for damages. And if thereafter his medical condition worsened and he died, the halakha is: Follow the assessment that was assessed at the intermediate stage, which determined that the victim would live, and the assailant is not executed; this is the statement of Rabbi Neḥemya. And the Rabbis say: There is no assessment after assessment. The death of the victim proves that the assessment at the intermediate stage was erroneous, and the assailant is executed.

תניא אידך אמדוהו למיתה אומדין אותו לחיים לחיים אין אומדין אותו למיתה אמדוהו למיתה והקל ממה שהיה אומדין אותו אומד שני לממון ואם לאחר כן הכביד ומת משלם נזק וצער ליורשים

It is taught in another baraita: If they assessed his condition, saying that it would lead to death, and his condition improved, they assess his condition to determine whether it would lead to life. If they assessed his condition, saying that it would lead to life, and his condition deteriorated, they do not then assess his condition to determine whether it would lead to death, but the assailant is exempted based on the initial determination. If they assessed his condition, saying that it would lead to death, and his condition eased from what it was, they assess the victim with a second assessment to determine the monetary restitution for damages, as the assailant is certainly liable to pay restitution for the injury that he caused. And if thereafter his medical condition worsened and he died, the assailant pays restitution to the heirs for injury and suffering that he caused.

מאימתי משלם משעה שהכהו וסתמא כרבי נחמיה

The Gemara asks: From when is the initial assessment of the value of the victim performed to determine the sum of the damages that the assailant pays? It is the assessment of his value from the moment that the assailant struck him. The Gemara notes: And this unattributed baraita is in accordance with the opinion of Rabbi Neḥemya, as according to the opinion of the Rabbis, he is liable to be executed even if there was a temporary improvement in his condition before he died.

מתני׳ נתכוין להרוג את הבהמה והרג את האדם לנכרי והרג את ישראל לנפלים והרג את בן קיימא פטור

MISHNA: If one intended to kill an animal, and he killed a person standing adjacent to it, or if he intended to kill a gentile, for whose murder he is not liable to be executed in court, and he killed a Jew, or if he intended to kill non-viable newborns, for whose murder one is not liable, and he killed a viable person, the assailant is exempt from execution, since his intent was to kill one for whose murder he is not liable.

נתכוין להכותו על מתניו ולא היה בה כדי להמיתו על מתניו והלכה לה על לבו והיה בה כדי להמיתו על לבו ומת פטור נתכוין להכותו על לבו

If one intended to strike another on his loins, and the blow was not powerful enough to kill him if it were to land on his loins, but instead the blow landed on his chest over the victim’s heart, and it was powerful enough to kill him when it landed on his chest over his heart, and the victim died as a result of the blow, the assailant is exempt from execution, as he did not intend to strike the victim a blow that would cause his death. If he intended to strike him on his chest over his heart