Sanhedrin 79b (עט:) — the Talmud in English

Giving"

above "

is what the verse says: ‘And there shall be no fatality... and he shall give according to the judges [he shall pay the value of the fetuses through the court]’"—

Just as there in the “giving above,” the verse speaks of giving

of

money

—

so too here—in the giving below—

money.

Rava said: This tanna of the school of Hezekiah:

excludes the opinion of Rabbi

that is, it differs from Rabbi’s statement. Rabbi holds that one is liable for payment in any event when he intended to kill one person but killed another, whereas the tanna of the school of Hezekiah exempts him from payment in this case, because of the principle that once one is liable for the greater penalty, he is exempt from the lesser penalty. For although in practice he is not liable to death, it is sufficient that he performed an act that would render him liable to death—had he intended to kill him—in order to exempt him from payment.

And it also excludes

also

the Rabbis, that is, it also differs from the Rabbis, who hold that he is liable to death when he intended to kill one person but killed another, whereas the tanna of the school of Hezekiah exempts him from death.

that is to say: he also disagrees with the Sages, who impose death when he intended to kill this person and killed that person, whereas the Tanna of the school of Hezekiah exempts him from death.

For the tanna of the school of Hezekiah: The verse states: “One who strikes an animal shall pay for it, and one who strikes a person shall be put to death [but shall not pay money, since once one is liable for the greater penalty, he is exempt from the lesser penalty].” Thus, the verse juxtaposes

the one who strikes a

person

who is exempt from payment

and one who strikes an

animal

who is liable to pay, in order to derive the exemption from payment from the liability to pay:

Just as, in the case of one who strikes an animal, you make no distinction:

between striking it

unintentionally or

between striking it

intentionally—

and

between

striking it

with intent or

between striking it

without intent—

Whether

he struck it

on the downward stroke

as he lowered his hand,

or

whether he struck it

on the upward stroke

as he raised his hand and struck it—

not to exempt him from payment, but to render him liable to payment

in all these cases, even when he acted unintentionally or without intent, or when he struck it on the upward stroke [for with regard to exile, the Torah exempted him

Rashi writes: “On the upward stroke” does not literally apply to the case of an animal; it is mentioned only because, with regard to a person, we find a distinction in the case of one who kills unintentionally: on the downward stroke he is liable to exile, but on the upward stroke, when he raises his hand, he is exempt from exile, as it is written, “and it falls upon him and he dies”; a falling motion is required. As it is written [Numbers 35]: “And if he pushed him suddenly without enmity, or hurled at him any vessel without lying in wait; or with any stone by which one may die, without seeing him, and it fell upon him and he died... then the congregation shall rescue the murderer from the hand of the blood-avenger, and the congregation shall return him to his city of refuge to which he fled.” From the Torah’s statement, “and it fell upon him and he died,” they derived that a falling motion is required]. So too, in the case of one who strikes a person, you shall make no distinction:

].

between

striking him

unintentionally,

when he is exempt from death,

and intentionally,

when he is liable to death—

between

striking him

with intent and without intent,

as the Gemara proceeds to explain.

between

striking him

on the downward stroke and on the upward stroke—

In all these cases, you shall make no distinction:

to render him liable to payment, but to exempt him from payment

in all the ways mentioned. Do not say: The Torah exempted him from payment because once one is liable for the greater penalty, he is exempt from the lesser penalty only when he did so intentionally, with intent, and on the downward stroke.

But

what is the meaning of

“without intent”

which the tanna of the school of Hezekiah says exempts him from payment?

If you say that it means without intent at all,

that

is identical to an unintentional act.

Rather, it is obvious that “without intent,” for which the tanna of the school of Hezekiah exempts him from payment, refers to a case in which he

does not intend to strike this person, but

intends to strike that person—

and it teaches: Do not make a distinction

to

render him liable to payment

since he did not intend to strike him,

but to exempt him

from

payment

even though he did not intend to strike him. We have thus learned that he is exempt from payment, contrary to Rabbi.

And necessarily he is also exempt from death, contrary to the Rabbis, since

if he is liable to death

if he is liable to death,

why would it be necessary to exempt him from payment

would we not know that once one is liable for the greater penalty, he is exempt from the lesser penalty?

Rather, learn from this

with regard to the position of the tanna of the school of Hezekiah:

he is not liable to death, and he is not liable to payment,

contrary to the Rabbis and contrary to Rabbi.

Mishna:

A murderer who became intermingled with others,

and the Gemara will explain which murderer is under discussion and who are the others with whom he became intermingled:

all of them are exempt.

Rabbi Yehuda says: They place them in a cell.

The Mishna further explains:

All those liable to death who became intermingled with one another,

all of them

are judged by

the

least severe

death to which any one of them was liable.

And if

those liable to stoning became intermingled with those liable to burning,

the tanna’im disagree as to which death is the less severe, by which all of them will be judged:

Rabbi Shimon says: They are judged

all

by stoning, because burning is more severe

than stoning, and the Mishna says that they are “judged by the less severe” death.

And the Sages say: They are judged by burning, because stoning is more severe

than it.

Rabbi Shimon said to them,

to the Sages, to prove that burning is more severe than stoning:

But

if burning were not more severe

than all the forms of death,

it would not have been given

it would not have been given

to the daughter of a kohen who committed adultery

with a man other than her husband, whose transgression is severe because she profanes her father, as the verse states: “And the daughter of a kohen, when she profanes herself by committing adultery, she profanes her father; she shall be burned with fire.”

They said to him,

the Sages, to prove that stoning is more severe than burning:

If stoning were not more severe

than all the forms of death,

it would not have been given to the blasphemer and to one who worships idolatry,

for they stretch out their hands against the fundamental principle of faith.

And if

those liable to execution

those liable to death by the sword

became intermingled with those liable to strangulation,

the tanna’im disagree as to which is the less severe death by which all of them will be judged:

Rabbi Shimon says:

They will all be judged

by the sword,

because strangulation is more severe than it.

And the Sages say:

They will all be judged

by strangulation,

because the sword is more severe than it.

Gemara:

We learned in the Mishna: “A murderer who became intermingled with others, all of them are exempt; Rabbi Yehuda says: They place them in a cell.” The Gemara explains what case is under discussion and what the dispute concerns:

Who are the others

with whom the murderer became intermingled? And

if you say that those

others are

innocent,

with no liability to death at all, this cannot be said for two reasons:

The first: If so,

it is obvious

what the Sages said: “All of them are exempt,” for they cannot all be sentenced to death because of the murderer who became intermingled among them.

And furthermore:

Would

Rabbi Yehuda say in such a case

“they place them”—

all of them together with the innocent people among them—

in a cell”?

A mnemonic: With flesh.

Said

explained

Rabbi Abbahu in the name of Shmuel:

Here we are dealing with a murderer whose verdict had not yet been finalized,

still before the court,

who became intermingled with other murderers whose

verdict had already

been finalized!

The Rabbis hold: A person’s verdict may be finalized only in his presence,

and even if all of them come before the court, since the court does not identify him, this is not considered in his presence—

Therefore,

since we cannot finalize the verdict of that murderer,

all of them are exempt

because of the one among them who is exempt.

And Rabbi Yehuda

holds:

It is also impossible to exempt them completely

even to exempt all of them from death is impossible,

since

in the end,

they are murderers

all of them.

Therefore: They place them in a cell.

Reish Lakish said:

If such a case

involving a person,

a murderer,

were under discussion, everyone

would agree that they are exempt,

and even Rabbi Yehuda would agree. Our Mishna is not dealing with such a case.

But here

in our Mishna, we are dealing

with an ox whose verdict had not been finalized

for stoning because it killed a person,

which became intermingled with other oxen whose verdicts had been finalized

for stoning.

They disagree:

The Rabbis hold:

The death of the ox is like the death of its owner,

for the Torah juxtaposed the death of the ox with the death of its owner, as the verse states: “The ox shall be stoned, and its owner shall also be put to death,”

and

therefore:

An ox’s verdict may be finalized only in its presence—

and therefore,

since one of the oxen had not had its verdict finalized for stoning, and we do not know which one it is,

all of them are exempt.

And Rabbi Yehuda holds: They place them in a cell.

He said:

raised a difficulty—

Rava

both concerning Shmuel’s interpretation and concerning Reish Lakish’s interpretation: