Makkot 6b (ו:) — the Talmud in English

Mishna:

If there were two

of the witnesses who came to testify concerning a person who killed someone,

who saw him from this window, and two who saw him from that window.

And one

was

warning him

the murderer, and the one issuing the warning was standing

in the middle,

standing between the two groups of witnesses—then

when some of them

of the groups of witnesses on both sides of the person issuing the warning

see one another,

all the witnesses join together as a single testimony, even those who did not see the others [Tosafot], and

these constitute a single testimony.

The witnesses of one group are not executed until all the witnesses in both groups are rendered edim zomemim.

But if not,

if some of these do not see the other group—

these are two testimonies.

Therefore, if it is found that

one

of them is rendered a conspiring witness—

he,

the defendant concerning whom they testified,

and

also

they,

the witnesses of the group that was refuted—

are executed.

And

the members of

the second group—

are exempt.

Rabbi Yosei says: They are never executed,

neither the defendant nor the conspiring witnesses,

until both of his witnesses have warned him.

As it is stated [Deuteronomy 17], “

By the testimony of two witnesses.”

On the testimony of two witnesses.”

The Nimukei Yosef explained: The entire matter—that is, both the testimony and the warning—must be established through the testimony of the two witnesses.

[The Nimukei Yosef explained: The entire matter—the testimony and the warning—must be established through the testimony of the two witnesses.]

Rabbi Yosei derives that a person is not considered a witness unless that witness himself warned the defendant concerning whom he is testifying.

Alternatively,

another exposition may be derived from this verse: “

By the testimony of two witnesses”—

the Sanhedrin may not hear testimony through an interpreter.

Rather, the judges must understand the words of the witnesses while they testify before them; they may not use an interpreter to understand the testimony.

Gemara:

Rav Zutra bar Tuvya said

that Rav said: From where is it derived with regard to “

separate testimony,”

when one witness sees the event from one window and the second witness sees it from another window, and the witnesses did not see one another,

that it is invalid

in capital cases, and the defendant is not executed on its basis?

Rather, in the case of a murderer, they place him in a cell, where he dies [Sanhedrin 81], since their testimony is true, but his execution is not entrusted to the court [Rashi there].

As it is stated [Deuteronomy 17], “

He shall not be put to death on the testimony of one witness.”

And we derive:

What is meant by “

one witness”?

If you say

that the verse means that a person is not executed on the basis of the testimony of

one witness

alone—

that has already

been understood from the first part

of the verse;

we learn it from there, since it is written, “

By the testimony of two witnesses

shall the dead man be executed”!

Rather, what is meant by “He shall not be put to death on the testimony of

is “He shall not be put to death on the testimony of

one witness”?

When there were two witnesses,

but they saw the testimony

one—

one: They each saw separately and did not join together through their sighting to become a single group of witnesses. Therefore, each of them is considered one witness, and the defendant is not executed on the basis of the testimony of “one witness,” even if the court heard two such testimonies!

Each saw separately, and they did not join together through their seeing to become one group of witnesses. Therefore, each is considered a single witness, and the defendant is not executed on the basis of the testimony of “one witness,” even if the court heard two such separate testimonies!

It was taught likewise: “

He shall not be put to death on the testimony of one witness.” -

Why was this stated, after the verse had already said that only through the testimony of two witnesses shall the dead man be executed?

Rather, this verse comes

to include that if there were

the case in which there were

two

witnesses

who saw him,

the murderer,

one from this window and one from that window, and the witnesses did not

see

one another—

they do not

join

join together

as a single testimony of one group of two witnesses. Rather, each of the witnesses is considered one witness, and their testimony does not join together to render the murderer liable to death.

And furthermore, even

if there were two witnesses who saw

one after the other from one window—

they do not join together!

Rav Pappa

asked

asked Abaye:

The language of the beraita implies that there is a novel point in disqualifying two witnesses who saw from one window one after the other. This is why the tanna said, “And furthermore”: The earlier law, disqualifying the joining of two witnesses who each saw from a different window at the same time, was more obvious to the tanna.

But seemingly, the reasoning should be the opposite!

For

now, if in the case of one from this window and one from that window, where this

witness

sees the entire event and that

witness

sees the entire event,

nevertheless

you said

that the two

do not join

as one testimony,

then when they saw from one window

one after the other, where this

witness

sees

only

half of the event,

part of the event and not all of it,

and that

witness

sees

afterward only

half of the event,

which occurred after the first part—

is it necessary to state that they do not join together!?

Would it not be obvious that they do not join, since neither witness testifies to having seen the entire event? Each testifies only concerning part of the event, and it is more obvious to disqualify two witnesses who saw one after the other even from one window than to disqualify two witnesses who saw at the same time from two windows!

After all, neither one testifies that he saw the entire act; each testifies only about part of the act. It is therefore more obvious that two witnesses who saw one after the other, even from one window, do not join together than that two witnesses who saw simultaneously from two windows do not join together!

He answered

replied,

him, Abaye answered Rav Pappa:

Abaye to Rav Pappa:

It is necessary only for

the novel point in this beraita

with regard to witnesses who see one after the other from one window a man who

witnesses who see, one after the other from one window, a man who

has intercourse with a forbidden relation,

since this is one prolonged act, and each sees a complete act sufficient to render him liable to death. There would be reason to join them because they saw from one window; the tanna therefore states that even in this case they do not join together.

Rava said: If

the two witnesses, each of whom sees from a separate window, nevertheless both

saw the person issuing the warning,

or

the

person issuing the warning saw them—

then they

join together

to constitute one group giving a single testimony.

And Rava said: The person issuing the warning of whom they said

according to the first tanna in our Mishna, who does not require that the warning be issued by the witnesses, the warning may be issued

even by

the murdered person

himself,

who warns the murderer not to kill him. The murdered person cannot testify before his death, as stated above.

And even by a demon,

who is heard by the person being warned [and the witnesses] as a voice issuing a warning to him, while they do not see the person issuing the warning.

Since the murderer heard the warning, and the witnesses saw the act and heard that he had been warned, it is unnecessary for them or anyone else to warn him.

Rav Naḥman said: “

Separate testimony”

is valid in civil cases.

Thus, if two witnesses saw an event from two windows, and neither saw the other, they join together to testify as one group.

and neither saw the other, they join together to testify as one group.

Its source is

as it is written: “

He shall not be put to death on the testimony of one witness.”

This implies that specifically

in capital cases [“

he shall be put to death”]

is where it is not valid

to have separate testimony;

but in civil cases, it is valid.

Rav Zutra raised an objection to this: If that is so,

since witnesses join together for testimony concerning money even in a case of separate testimony, and only with regard to capital cases did the verse reveal that they do not join together to render the defendant liable to death, then their joining should be effective with regard to exempting the defendant from death; even

in capital cases, it should save

the defendant, as though it were one testimony!

For example, in the case of our Mishna, where two groups of witnesses testified in a capital case concerning a person liable to death, and one group was rendered a group of conspiring witnesses, as we learned: “He [the person concerning whom they testified] and they [the group that was refuted] are executed,” since another group that rendered him liable to death still exists.

That is, the second group is not disqualified [together with the first group that was refuted] on the basis of the principle that testimony is nullified in part, since the witnesses of the second group saw the act from a different window. But all the witnesses of the first group who were refuted are executed, because through their testimony they were zomemim—conspiring witnesses—even though the accused is in fact executed on the basis of the testimony of the second group.

But if it is possible for edut meyukhedet, separate testimony, to combine in monetary cases, the difficulty is that in capital cases as well all of them should be disqualified, even though each group saw the act from a different window, since there is already reason to regard them as one group, in order to be lenient.

For since it is written, “and the congregation shall save,” we should disqualify them because of the combination between them, since we find that this combination is effective with regard to other testimony that does not concern capital cases, and thereby save the accused, by establishing that the testimony of the fit witnesses concerning him is nullified.

Likewise, we would save the witnesses of the conspiring group, because through the combination they would all be considered one group, and since all of them were not refuted, the witnesses who were refuted are not punished until all of them are refuted.

Almah tana,

why, then, did we learn in this manner in the Mishna:

“He and they are executed!”

That is, they are considered two groups even for stringency in capital law!?

And we conclude: Indeed,

difficult!

We learned in the Mishna:

Rabbi Yosei says,

they are never executed unless both of his witnesses warned him!

Rav Pappa said to Abaye: Does Rabbi Yosei indeed hold this opinion

that the warning must specifically come from the witnesses, and not from another person!?

But we learned: Rabbi Yosei says: “The enemy”

who killed the person he hated and claims that he killed him inadvertently is not believed; rather, he

is executed, because he is presumed to have been forewarned and warned

not to kill him, and he certainly killed him intentionally!

But there was no warning here from the witnesses, for if they had warned him, it would be obvious that he could not claim that he had killed him inadvertently. Nevertheless, Rabbi Yosei holds him liable!

And we answer:

He said

he replied

to him

Abaye to Rav Pappa:

That

which we learned, “the enemy is executed,” was not stated by the Rabbi Yosei mentioned in our Mishna [who is Rabbi Yosei ben Ḥalafta]. Rather, this statement is the view of

Rabbi Yosei bar Yehuda.

And we find elsewhere that this is the view of Rabbi Yosei, son of Rabbi Yehuda.

As it was taught in a beraita: Rabbi Yosei bar Yehuda says: “A

ḥaver,”

meaning a person who is expert in the laws,

does not require a warning,

but he is executed when witnesses testify against him that he committed a transgression punishable by death, even though they did not warn him—

For a warning was instituted only to distinguish between

an inadvertent act and an intentional one.

For the witnesses cannot testify that a person acted intentionally if he was not warned, since perhaps he did not know the law and its punishment. But a ḥaver cannot say, “I did not know,” and therefore testimony concerning his actions is sufficient even without a warning. And likewise, the enemy does not require a warning, since he is presumed to have acted intentionally [and the case concerns a ḥaver who knows the law concerning a murderer].

We learned in the Mishna:

Alternatively, “by the mouth of two witnesses”—that the Sanhedrin should not hear testimony through an interpreter.

And the Gemara relates an incident involving

those foreigners,

witnesses who spoke in a foreign language that the judges did not understand,

who came

to testify

before Rava,

before Rava.

He set up

an interpreter

between them

between them and the judges.

The Gemara assumed that Rava set up the interpreter so that he would translate and explain the witnesses’ words to the court. Therefore, the Gemara raises a difficulty from our Mishna:

And how did he do this

how did Rava do

so?

But we learned: “that the Sanhedrin should not hear testimony through

an interpreter!”

And we answer: an interpreter was not needed for that purpose.

Rather,

Rava did understand what they were saying.

And

only

he did not know how to respond to them.

Rava did not know how to speak their language, and he did not know how to answer them in their language. In order for the witnesses to understand the judges’ words, he had to set up an interpreter; and the statement “that the witnesses should not hear through an interpreter” does not apply to this.

[In the glosses of the Bach it is written that the following incident came before Rava together with the case of those foreigners, and it was therefore placed here, although it belongs to the law of a relative or otherwise disqualified witness].