Babylonian Talmud: Tractate Sanhedrin

Folio 79a

GEMARA. To which clause does R. Simeon refer? Shall we say to the last? In that case, the Mishnah should state, R. Simeon declares him not liable.²  But he refers to the first clause: IF HE INTENDED KILLING AN ANIMAL, BUT SLEW A MAN, OR A HEATHEN AND HE SLEW AN ISRAELITE, OR A PREMATURELY BORN AND HE SLEW A VIABLE CHILD, HE IS NOT LIABLE. This implies, that if he intended killing one [Israelite] and killed another, he is liable. [Thereupon] R. SIMEON SAID: EVEN IF HE INTENDED KILLING ONE BUT KILLED ANOTHER, HE IS NOT LIABLE.

Now, it is obvious that if Reuben and Simeon were standing, and the murderer said, 'I intended killing Reuben, not Simeon [whom he did actually kill] — that is the case wherein they differ. But what if he said, 'I intended killing any of then,';³  or [again], if he thought that this victim was Reuben, but then found him to be Simeon? — Come and hear! For it has been taught: R. Simeon said: [He is not liable] unless he declares, 'My intention was to kill so and so' [whom he did kill].⁴

What is R. Simeon's reason? — The Writ saith, [But if any man

All is well according to the Rabbis, who maintain that if he intended killing one man and killed another, he is liable. For it is written, If men strive, and hurt a woman with child;⁹  whereupon R. Eleazar observed: The verse refers to attempted murder,¹⁰  because It is written, And if any mischief follow, then thou shalt give life for life.¹¹  But how does R. Simeon interpret, 'thou shalt give life for life'?¹²  — It refers to monetary compensation, in harmony with Rabbi's [interpretation]. For it has been taught: Rabbi said: Then thou shalt give life for life: this refers to monetary compensation.¹³  You say, monetary compensation: but perhaps this is not so, life being literally meant? 'Giving' is stated below;¹⁴  and 'giving' is also stated

1. Lit., 'a minor'.
2. Why repeat, Even if he intended etc.? Since it bears upon the clause immediately preceding, the circumstances having been stated, it is sufficient just to give R. Simeon's ruling.
3. Does R. Simeon regard this as intentional, or not, since he would have been equally satisfied had the other been killed.
4. This proves that in both cases propounded, he is not liable according to R. Simeon.
5. Deut. XIX, 11
6. How do they interpret 'for him' and 'against him'?
7. Since they were equally divided, we do not know whether he aimed at a Israelite or a heathen, and hence even without a verse we know that he is not liable.
8. This is a general rule in the Talmud. Although the majority is always followed, that is only when the minority is not [H] Kabua', fixed, settled in a certain place; but otherwise, it is equal to the majority. The following example from the Talmud will make it clearer. If there are ten butcher shops in a street, nine of which sell only kosher meat, the tenth selling terefah meat, and a piece of meat is found in the street, it may be assumed to be kosher, as the majority is followed. But if meat was bought in one of the shops, and it is not known from which, this assumption may not be made, because the doubt arises not in the street but in the shop, and the minority is in a settled place. Thus here too, since the company is all together, the place of the heathen is known and fixed, as it were. The verse under discussion teaches that the murderer in this case is not liable: hence it becomes the source of the principle that a 'settled' minority is regarded as equal to the majority.
9. Ex. XXI, 22.
10. Lit., 'the verse speaks of a strife with murderous intent'.
11. Ibid. 23; v. supra, 74a.
12. Since the murder of the woman was unintentional, according to R. Simeon there is no death penalty.
13. I.e., the value of the woman's life must be paid to her husband.
14. Viz., in the verse under discussion.

Raba said: The following Tanna of the School of Hezekiah differs from both Rabbi and the Rabbis — For a Tanna of the School of Hezekiah taught: And he that killeth a beast [shall pay for it:] and he that killeth a man, [he shall be put to death].²  Just as in the case of one who kills an animal, you draw no distinction between an unwitting or a deliberate act, an intentional or unintentional blow, a downward blow or an upward one,³  not acquitting him thereof, but imposing monetary liability; so in the case of killing a man,⁴  you must draw no distinction between an unwitting or a deliberate act, an intentional or unintentional blow, a downward or an upward thrust, not imposing a monetary liability. but acquitting him thereof.⁵  Now, what is meant 'unintentional'? Shall we say, entirely unintentional? But then it is identical with 'unwitting'. Hence it obviously means not intending to slay this one, but another: and for such a case it is taught, 'not imposing monetary liability', but acquitting him thereof'. But if he is liable to death, it is surely unnecessary to teach that he is not liable to make compensation?⁶  Hence it follows that he is liable neither to execution nor to make compensation.⁷

MISHNAH. IF A MURDERER BECAME MIXED UP WITH OTHERS, THEY ARE ALL EXEMPTED [FROM THE PENALTY]. R. JUDAH SAID: THEY ARE PLACED IN A CELL.⁸  IF A NUMBER OF CONDEMNED PERSONS DIFFERING IN THEIR DEATH SENTENCES BECAME MIXED UP WITH ONE ANOTHER, THEY ARE EXECUTED BY THE MOST LENIENT [DEATH]. IF CRIMINALS CONDEMNED TO STONING [BECAME MIXED UP] WITH OTHERS CONDEMNED TO BURNING, — R. SIMEON SAID: THEY ARE STONED, BECAUSE BURNING IS SEVERER; BUT THE SAGES SAY THEY ARE BURNED, BECAUSE STONING IS MORE SEVERE. R. SIMEON SAID TO THEM: WERE NOT BURNING SEVERER, IT WOULD NOT BE DECREED FOR A PRIEST'S ADULTEROUS DAUGHTER. THEY REPLIED: WERE NOT STONING MORE SEVERE, IT WOULD NOT BE THE PENALTY OF A BLASPHEMER AND AN IDOLATER. IF MEN CONDEMNED TO DECAPITATION BECAME MIXED UP WITH OTHERS CONDEMNED TO STRANGLING, — R. SIMEON SAID: THEY ARE [ALL] DECAPITATED; THE SAGES SAY: THEY ARE STRANGLED.

GEMARA. Who are meant by 'others'?⁹  Shall we say, other innocent men: is it not obvious?¹⁰  Moreover, could R. Judah say in such a case that 'they are placed in a cell'? (Mnemonic Besh rak)¹¹  — R. Abbahu said in Samuel's name: The Mishnah treats of an unsentenced murderer who became mixed up with other murderers already sentenced, the Rabbis holding that no man can be condemned save¹²  in his presence; therefore they are all freed;¹³  while R. Judah maintains that they cannot all be exempted, since they are murderers: therefore they are placed in a cell.

Resh Lakish said: If this happened to human beings, all agree that they are exempt. But here the reference is to an ox [that had gored] but was as yet uncondemned, which was mixed up with other oxen already condemned. The Rabbis maintain: As the death penalty of its owner, so is that of the ox; therefore an ox [too] can be sentenced only in its presence, hence they are all exempt. But R. Judah rules that they are placed in a cell.¹⁴  Raba demurred:

1. Viz., If … no mischief follow … he shall pay (Heb. [H] give) as the judges determine.
2. Lev. XXIV, 21. This verse, by coupling the two, likens them to each other; It also implies that where monetary compensation was to be made for an animal, it is not so for a man, since 'shall pay for it' is only prescribed for the former.
3. This is irrelevant here, but is mentioned because in the case of homicide this distinction is drawn (v. Mak. 7a).
4. Where, as observed in n. 4, there is no monetary compensation.
5. [The greater penalty of death attached to the offence acquits the offender of all monetary liability even in cases where the death penalty is not applied.]
6. V. p, 490 n. 1.
7. Thus this teacher differs from Rabbi, who holds him liable to compensation, and from the Rabbis, who rule that he is even executed.
8. V. infra 81b.
9. In the first clause.
10. That they must all be freed.
11. [H], B ([H]) ABBAHU; SH ([H]) = SAMUEL; R ([H]) = RABA; K ([H]) = RESH LAKISH; the names of the Amoraim that follow.
12. Even if they are all assembled, it is still regarded as in his absence, since he is unknown.
13. Lit., 'they complete not the trial of a man'.
14. The reasoning being as before.