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Twice Guilty

Sanhedrin (9:4) | Yisrael Bankier | a day ago

The Mishnah (9:4) discusses the case where one is liable to two capital punishments and explains that he receives the more severe of the two.

The Mishnah then continues with the case where a particular act entails two different prohibition that are each liable to different capital punishments. The first opinion is that, once again, the more severe of the two are administered. R' Yossi however argues that it would be the first of the two prohibitions that applied, that would be relevant. The Bartenura explains that if a woman was married prior to becoming this person's mother-in-law, then the prohibition of eshet ish, which is punishable with chenek, applied prior to the second prohibition, which is punishable with sereifa. Consequently, chenek would be apply in this case, despite being a more lenient form of capital punishment. That is because R' Yossi maintains that ein issur chal al issur. In other words, once the relationship was prohibited, the additional prohibition has no place to take hold or apply.

Let us however return to the first case in the Mishnah where the individual was liable for two separate capital offences. The Gemara (81a) explains that one might have thought that once the person has been found guilty of the first prohibition, he is already considered executed, such that he can no longer be tried for the second. Consequently, one might think that the first punishment should be administered even if it is more lenient. The Mishnah is therefore needed to teach that that is not the case.

The Tosfot however ask how the person could even be tried for the second capital offence. For there to be valid witnesses, the law of hazama must be able to be applied to them -- edut sha'ata yachol le'hazima. To explain, if a set of witness are found to be false, because another set testify that they were in a different location at the time, then they receive the punishment they wished to administer through their testimony -- a reciprocal punishment. In our case, the second set of witnesses would not be able to receive a reciprocal punishment, since the accused was already found guilty of the first offence and scheduled to be executed. Their attempt was equivalent to wanting to kill a dead person. Consequently, their testimony should not have been accepted.

The Tosfot first answer, that it is possible that the second offence occurred in front of beit din which does not rely on the standard testimony to execute the individual. The Tosfot cite a similar case where Beit Din saw a tereifa, a person with a fatal condition, kill someone. That too would be case where hazama would not be possible, since the witnesses would be testifying about a person that is already considered killed. Nonetheless, the Beit Din would be able to execute him, having all witnessed the murder, based on "u'ibarta harah".

The Tosfot however offer a second answer. They explain that if the first set of witnesses were found to be false, such that the first capital charge would be retracted, then the second testimony would be relevant to executing them. Since that is the case, it is still defined as edut she'ata yachol le'hazima. What does this mean?

The Maharsha notes that the Gemara (Makkot 5a) discusses a case where witnesses testified that an individual was found guilty of a capital offence and then found to be false, However those falsifying witnesses also testified that the accused was indeed found guilty prior to that. In that case the false witnesses would not be executed. This is despite the fact that the real witnesses in that case could also potentially be found to be false or invalid. Consequently, he explains that when the Tosfot explain that the testimony of the second witnesses are edut she'ata yachol le'hazima, it does not mean that they could be executed if found false. The first set are still in place and the accused is still to be executed. It is only that if the something were to happen to invalidate the first set, they could then be liable to the reciprocal capital punishment. That possibility is enough to allow them to testify.

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