Sanhedrin 33b (לג:) — the Talmud in English

The case is returned to the court to argue for acquittal

but it is not returned to argue for conviction,

in the following manner:

The case is returned to argue for acquittal

in capital cases, in cases that are

purely to the defendant’s benefit,

such as when they found him liable in a capital case for desecrating Shabbat, in which case returning the case is beneficial to him without thereby creating an obligation for the opposing party, since there is no opposing party here.

But the case is not returned to argue for conviction,

that is,

to an acquittal that is an obligation.

For it is impossible to interpret the Mishna literally, as stating that in capital cases the case is not returned from acquittal to conviction, because this is not even the rule in monetary cases. Yet the Mishna distinguishes between monetary cases and capital cases.

But the Gemara raises an objection: In capital cases,

an obligation for whom!?

For whom would it be an obligation if we return a capital case to argue for acquittal!? And it answers:

That is not difficult—

it is an obligation for the blood-avenger.

For if we return the murderer’s case to argue for his acquittal, it will be an obligation for the blood-avenger, because he is distressed by the murderer’s having escaped punishment for killing his relative.

The Gemara raises another objection: Is it so that

because it is an obligation for the blood-avenger, we execute this man?

Shall we execute him and not return his case to argue for acquittal!?

Furthermore,

there is another difficulty:

what

is the meaning of the wording used by the tanna, that in monetary cases the case is returned

both

for acquittal

and

for conviction? But according to your explanation, it is returned only for an acquittal [that is an obligation for the other party]!?

And we conclude: Indeed,

it is difficult.

Ravina said:

It is possible to explain the distinction stated by Rav Ḥisda as follows: Here, the judge took the item and transferred it by hand; there, he did not take the item and transfer it by hand. And regarding the objection we raised about one who acquitted the liable party—how could this involve taking the item and transferring it by hand?—one can say that the case is

for example, he had in his possession

the lender’s

collateral

for the debt, and he exempted the borrower from the debt,

and took it

the collateral

from him,

the judge, and gave it to the borrower. Similarly, in the case of

one who declared pure that which was impure,

the case should be understood as one in which

a creeping creature came into contact with it,

rendering it impure by direct action, and likewise, in the case of

one who declared impure that which was pure,

the case should be understood as one in which

the

judge

mixed them

with the impure produce

among his produce

the pure produce belonging to the person who had asked the question, thereby rendering all of it impure.

We learned in the Mishna:

Capital cases, etc.

The Sages taught: From where do we know that if a person leaves the court having been found liable, and one of the judges says: “I have a way to argue for his acquittal,” from where do we know that we return him to the court?—

The verse states

Exodus 23]

“Do not kill the innocent.”

The meaning of the verse is that if the person found liable in judgment is innocent of the sin, do not execute him; rather, return him to the court and hear the argument for acquittal that this person has to present.

And from where do we know that if a person leaves the court having been found acquitted, and one of the judges says: “I have a way to argue for his conviction,” from where do we know that we do not return him to the court?—

The verse states

Exodus 23]

“Do not kill the righteous.”

The meaning of the verse is that he is righteous with regard to the judgment, having been acquitted, but he is not innocent of the sin.

Rav Shimi bar Ashi said: And the opposite is the rule with regard to an inciter. As it is written

Deuteronomy 13]

“You shall not spare him, nor conceal him.”

Rav Kahana taught

Deuteronomy 13]

from the verse “But you shall surely kill him.”

Rabbi Zeira asked Rav Sheshet: With regard to those liable to exile, from where

do we know whether their law concerning returning the case is like that of capital cases?

And the Gemara explains:

It is derived

by means of a gezeira shava,

“murder, murder.”

With regard to those liable to execution, it is stated: “The murderer shall surely be put to death,” and with regard to those liable to exile, it is stated: “To flee there, where the murderer may flee.”

With regard to those liable to lashes, from where—

It is derived

by means of a gezeira shava,

“wicked”—

“wicked.”

This is also taught in a beraita: With regard to those liable to exile, what

is the derivation?

By means of a gezeira shava,

“murder, murder.” Those liable to lashes—

it is derived

by means of a gezeira shava,

“wicked, wicked.”

We learned in the Mishna:

But the case is not returned to argue for conviction.

Rabbi Ḥiyya bar Abba said that Rabbi Yoḥanan said: And this is when the judge who argued for acquittal erred

in a matter

about which the Sadducees do not agree,

meaning that his error is not explicit in the Torah but appears only in the words of the Mishna and the Gemara

. But if he erred in a matter that

even

the Sadducees agree about,

the case is returned,

go, read it in the schoolhouse!

For it is a matter that even schoolchildren know to be an error, and such a verdict is considered nothing.

Rabbi Ḥiyya bar Abba asked Rabbi Yoḥanan: If the judge erred

in arguing for acquittal

in the case of an adulterer and an adulteress, what is the law?

He said to him: While your fire is burning, go cut your pumpkins and roast them.

This is a parable: As long as the fire in the hearth is burning, take advantage of it; cut your pumpkins and roast them over it. The application of the parable is that when you hear a matter, pay attention to understand it and draw further conclusions. Since you heard from me that if a judge erred in a matter about which the Sadducees agree, the judgment is reversed even from acquittal to conviction, you should have inferred on your own that if he erred in the case of an adulterer and an adulteress, which is a matter about which the Sadducees agree, the judgment is reversed, because there is no basis here for acquittal.

It was also stated: Rabbi Ami said that Rabbi Yoḥanan said: If one erred in the case of an adulterer, the judgment is reversed.

But the Gemara asks:

Rather, what are the circumstances of “the case is not returned”

in capital cases,

which also include the cases of an adulterer and an adulteress?

Rabbi Abbahu said that Rabbi Yoḥanan said: For example, if he erred

with regard to liability for intercourse

in an unnatural manner,

which is derived from the verse “the lying places of a woman,” indicating that the verse speaks of two forms of intercourse: one in the natural manner and one in an unnatural manner. This is a matter about which the Sadducees do not agree, and this judge acquitted the defendant with regard to intercourse in an unnatural manner.

We learned in the Mishna:

In monetary cases, everyone may argue for acquittal or conviction; in capital cases, everyone may argue for acquittal.

And the Gemara infers:

“Everyone”—

even

the

witnesses

who testified concerning the act that rendered him liable to death may come and argue for his acquittal, to save him from execution.

Shall we say that our Mishna is the opinion of Rabbi Yosei bar Rabbi Yehuda, and not that of the Rabbis?

As it is taught:

Numbers 35]

“And one witness shall not testify against a person”—

neither for acquittal nor for conviction. Rabbi Yosei bar Rabbi Yehuda says: He may testify for acquittal, but he may not testify for conviction.

Rav Pappa said: The word “everyone” stated in the Mishna refers

to

one of the students

who sit in rows before the judges, and not to the witnesses,

and it is the opinion of all.