(1) The Murderer.
A murderer who has struck his neighbour with iron or stone, or held him down in fire or water so that he could not rise, and he die, is guilty. If he pushed him in water or fire so that he could rise, yet he die, he is innocent. If he incited a dog or snake against the victim, he is innocent. If the snake bit him, R. Jehuda would convict, but the majority acquit.
A murderer who has struck his neighbour with a stone, or with his fist, so that he was expected to die yet afterwards improved, and then grew worse and died, is guilty. R. Nehemia would acquit, since the death may be attributable to other causes.
T. XII. 3. R. Shimeon, 3 the Temanite, says: "As the fist 4 with which a murder is alleged to have been committed is such a thing as is known to the judges and witnesses (as being able to produce death), so the stone 5 (with which a murder is alleged to have been committed) ought to be subject to examination by the judges and witnesses, unless the stone be lost." R. Akiba said to him: "Supposing that
even the stone were not lost, and it or the weapon be hung up in the court, would the judges know whether the defendant struck the victim on the leg or on 'the bird of life'? 1 Or suppose the victim had been pushed from the top of a tower and he die, could we say, 'Let the tower come to the court'? And even if thou say, 'Let the court go and see the tower,' suppose that it have fallen in the meantime, could we say, 'Let the builders come and build it up again'? In that case what reason would there be to trust in witnesses at all? Therefore, even in capital cases, dependence must be placed on the word of the witnesses."
4a. If the stone be mingled with other objects, they decide which of them are harmless; if there be sufficient (stone) to cause death the culprit is guilty, if not he is free. If the missile be such that if it falls into fire it is burnt up, or if into water it dissolves, he is free.
IX. 2. The following are innocent: one who intended to kill a beast but killed a man; or a foreigner but killed an Israelite; or a miscarriage but killed a mature birth; one who intended to strike some one on the loins such that a blow on the loins would not kill, but reached the heart in such a way that a blow on the heart would be fatal, and the victim die; or one who intended to strike some one on the heart in such a way that on the heart it would be fatal, but struck him on the loins where it would not be fatal, and yet the victim die; or one who intended to strike an adult with a blow which would not be fatal to an adult but it fell on a child, being such that it would be fatal to a child,
and the child die; or one who intended to strike a child with a blow which to a child would be fatal but it fell on an adult, being such as would not be fatal to an adult, and yet the adult die--such a one is innocent.
If one intended to strike a person on the loins with a blow such as would there be fatal, and it fall on his heart, and he die; or intended to strike an adult with a blow such as to him would be fatal and it fall on a child, and the child die--he is guilty. R. Shimeon holds that even if he intend to kill one man and kill another he is innocent.
T. XII. 4b. If he intended to strike one person and he struck another, R. Jehuda convicts, whereas R. Shimeon acquits. But R. Jehuda admits that if he intended to kill a beast but killed a man; or a foreigner but killed an Israelite; or a miscarriage but killed a mature birth,---he is innocent.
IX. 3. If one murderer is associated with others they are all free from penalty. R. Jehuda maintains that they are all put together in prison. If a number of offenders are all liable to death, and are associated together, they are to be condemned to the more lenient death; e.g. those liable to stoning are to suffer burning. R. Shimeon maintained that they should be condemned to stoning, since burning is the severer death. But the majority held that he should be condemned to burning, since stoning is the severer death. R. Shimeon maintained that if burning were not the severer death it would not be applied to a priest's daughter who had sinned; it was replied, that if stoning
were not the severer death it would not be applied to blasphemy and idolatry. Further, decapitation is relaxed to strangling; R. Shimeon favoured the sword, but the majority strangling.
T. XII. 5. They who are condemned for crimes punishable by severe deaths, and at the same time for crimes punishable by easier deaths, are to be killed by the easier. R. Jose says strangling is the easiest death. R. Jose said, further, the culprit is condemned for the first crime of which he was guilty. Thus, if a man has had criminal connexion with his mother-in-law, who was likewise a man's wife, if she was in the first instance his mother-in-law and later became a man's wife, he is condemned to burning. If she was in the first instance a man's wife and later became his mother-in-law, he is condemned to strangling.
. IX. 4. If a man become liable in the court to two death-penalties, he should be condemned to the severer one. If a man commit a transgression for which there are two kinds of death-penalty, he should be condemned to the severer one. R. Jose holds that he should be condemned to the first obligation to which he becomes liable.
T. XII. 6. If a man commit a transgression for which there are two kinds of death-penalty, he should be condemned to the severer one. In the case of any one condemned to death-penalties enjoined in the Law, if thou canst not put him to death by a severer means, put him to death by any means, be it severe or easy, for it is written: AND THOU SHALT EXTERMINATE THE EVIL FROM THY MIDST. 1
IX. 5. If a man has been scourged, and then scourged a second time in the court, he is taken
to prison and fed with barley till his belly bursts. If a man has committed murder, and there be no witnesses, he is taken to prison and fed with the BREAD OF ANGUISH AND WATER OF AFFLICTION. 1
T. XII. 7. If a man about to commit a crime be warned and he keep silent, or if, when he is warned, he shake his head, they are to warn him a first time and a second time, and the third time to take him to prison. Abba Shaul says: He is warned a third time; and on the fourth is taken to prison and fed with BREAD OF ANGUISH AND WATER OF AFFLICTION. In the same way, they who have been found guilty and condemned to scourging, and have repeated the offence and been scourged a second time, on the third occasion are to be taken to prison. Abba Shaul says: They are scourged a third time, and on the fourth occasion they are taken to prison and fed with barley till their belly bursts.
Footnotes
115:3 R. Shimeon, the Temanite, was one of the second generation of the Tannaim, c. 120 A.D.
115:4 Exod. 21. 18.
115:5 Numb. 35. 17.
116:1 A euphemism; unless, as in the following section of the Mishnah, the heart is meant.
118:1 Deut. 17. 7.
119:1 Isa. 30. 20.
