Sanhedrin 78a

וְאִי לָאו כֹּחוֹ הוּא – תֵּיזִיל לְתַחַת. אֶלָּא, כֹּחַ כָּחוּשׁ הוּא.

Rav Pappa answered: And were it not for the force of his action, the stone would go down and not to the side. Rather, although it is a weak force, the force of his action is a partial cause of the damage caused by the stone going to the side; therefore, he is liable.

תָּנוּ רַבָּנַן: הִכּוּהוּ עֲשָׂרָה בְּנֵי אָדָם בַּעֲשָׂרָה מַקְלוֹת וָמֵת, בֵּין בְּבַת אַחַת, בֵּין בְּזֶה אַחַר זֶה – פְּטוּרִין. רַבִּי יְהוּדָה בֶּן בְּתִירָא אוֹמֵר: בְּזֶה אַחַר זֶה, הָאַחֲרוֹן חַיָּיב, מִפְּנֵי שֶׁקֵּירַב אֶת מִיתָתוֹ.

The Sages taught: If ten people struck an individual with ten sticks and as a result of the beating he died, whether they beat him simultaneously, or whether they beat him one after the other, they are exempt from liability for killing him, as two people are not liable for an action that they performed together. Rabbi Yehuda ben Beteira says: If they struck him one after the other, the one who struck him last is liable, because he hastened his death.

אָמַר רַבִּי יוֹחָנָן: וּשְׁנֵיהֶם מִקְרָא אֶחָד דָּרְשׁוּ, ״וְאִישׁ כִּי יַכֶּה כׇּל נֶפֶשׁ אָדָם״. רַבָּנַן סָבְרִי: ״כָּל נֶפֶשׁ״ – עַד דְּאִיכָּא כׇּל נֶפֶשׁ, וְרַבִּי יְהוּדָה בֶּן בְּתִירָא סָבַר: ״כׇּל נֶפֶשׁ״ – כׇּל דְּהוּא נֶפֶשׁ.

Rabbi Yoḥanan says: And both Rabbis, i.e., the first tanna and Rabbi Yehuda ben Beteira, interpreted the same verse in drawing their halakhic conclusion. The verse states: “And a man who strikes any soul mortally, he shall be put to death” (Leviticus 24:17). The Rabbis hold that “any soul” means that one is liable for murder only when there is an entire soul, i.e., when the murderer alone is responsible for taking the entire life of the victim. And Rabbi Yehuda ben Beteira holds that “any soul” means that one is liable for murder for taking any soul, even if the victim had already been beaten and was close to death.

אָמַר רָבָא: הַכֹּל מוֹדִים בְּהוֹרֵג אֶת הַטְּרֵיפָה שֶׁהוּא פָּטוּר, בְּגוֹסֵס בִּידֵי שָׁמַיִם שֶׁהוּא חַיָּיב. לֹא נֶחְלְקוּ אֶלָּא בְּגוֹסֵס בִּידֵי אָדָם. מָר מְדַמֵּי לֵיהּ לִטְרֵיפָה, וּמָר מְדַמֵּי לֵיהּ לְגוֹסֵס בִּידֵי שָׁמַיִם.

§ Rava says: All concede that in the case of one who kills one who has a wound that will cause him to die within twelve months [ tereifa ] he is exempt from liability, as in a certain sense the legal status of the victim is that of a dead person. All concede in a case where one kills an individual dying from an illness caused at the hand of Heaven that he is liable, as no other individual took action contributing to his death, and the murderer alone took his remaining soul. They disagree only in a case where one kills an individual dying from injury caused at the hand of a person. One Sage, the Rabbis, likens this case to the case of a tereifa , and therefore rules that the one who kills him is exempt. And one Sage, Rabbi Yehuda, likens this case to the case of an individual dying from an illness caused at the hand of Heaven, and therefore rules that the one who kills him is liable.

מַאן דִּמְדַמֵּי לֵיהּ לִטְרֵיפָה, מַאי טַעְמָא לָא מְדַמֵּי לֵיהּ לְגוֹסֵס בִּידֵי שָׁמַיִם? גּוֹסֵס בִּידֵי שָׁמַיִם לָא אִיתְעֲבִיד בֵּיהּ מַעֲשֶׂה, הַאי אִיתְעֲבִיד בֵּיהּ מַעֲשֶׂה.

The Gemara asks: As for the one who likens this case to the case of a tereifa , what is the reason that he does not liken it to the case of an individual dying from an illness caused at the hand of Heaven? The Gemara answers: In the case of an individual dying from an illness caused at the hand of Heaven, no action was performed by a person to kill him, whereas in this case of an individual dying from injury caused at the hand of a person, an action was performed by an individual to kill him. Therefore, it is a case of two people who performed an action together, and they are not liable.

וּמַאן דִּמְדַמֵּי לֵיהּ לְגוֹסֵס בִּידֵי שָׁמַיִם, מַאי טַעְמָא לָא מְדַמֵּי לֵיהּ לִטְרֵיפָה? טְרֵיפָה – מְחַתְּכִי סִימָנִים, הָא לָא מְחַתְּכִי סִימָנִים.

The Gemara asks: And as for the one who likens this case to the case of an individual dying from an illness caused at the hand of Heaven, what is the reason that he does not liken it to a tereifa ? The Gemara answers: In the case of a tereifa , his status is like that of one whose organs, the trachea and the esophagus, are cut, who is considered to be slaughtered. The status of this individual dying from injury caused at the hand of a person is not like that of one whose organs, the trachea and the esophagus, are cut, as there is no particular defect; rather, he is like one suffering from general frailty, like any frail or elderly individual.

תָּנֵי תַּנָּא קַמֵּיהּ דְּרַב שֵׁשֶׁת: ״וְאִישׁ כִּי יַכֶּה כׇּל נֶפֶשׁ אָדָם״ – לְהָבִיא הַמַּכֶּה אֶת חֲבֵירוֹ וְאֵין בּוֹ כְּדֵי לְהָמִית, וּבָא אַחֵר וֶהֱמִיתוֹ, שֶׁהוּא חַיָּיב.

A tanna taught a baraita before Rav Sheshet: The verse that states: “And a man who strikes any soul mortally, he shall be put to death” (Leviticus 24:17), serves to include the case of one who strikes another and it is a blow in which there is not sufficient force to kill, and then another individual comes and kills him; the verse teaches that the second individual is liable.

אֵין בּוֹ כְּדֵי לְהָמִית? פְּשִׁיטָא! אֶלָּא, יֵשׁ בּוֹ כְּדֵי לְהָמִית וּבָא אַחֵר וֶהֱמִיתוֹ, שֶׁהוּא חַיָּיב. וּסְתָמָא כְּרַבִּי יְהוּדָה בֶּן בְּתִירָא.

The Gemara challenges: If the first individual struck him with a blow in which there is not sufficient force to kill, this halakha is obvious, as the first did not perform an act of killing at all, and it is only the second who killed him. Rather, emend the baraita to teach: The verse serves to include the case of one who strikes another and it is a blow in which there is sufficient force to kill, and then another individual comes and kills him; the verse teaches that the second individual is liable. And this unattributed baraita is in accordance with the opinion of Rabbi Yehuda ben Beteira, who holds that one who completes the killing of an individual is liable to be executed as a murderer.

אָמַר רָבָא: הַהוֹרֵג אֶת הַטְּרֵיפָה – פָּטוּר. וּטְרֵיפָה שֶׁהָרַג בִּפְנֵי בֵּית דִּין – חַיָּיב, שֶׁלֹּא בִּפְנֵי בֵּית דִּין – פָּטוּר.

Rava says: One who kills a tereifa is exempt as it is as though he killed a dead person. And as for a tereifa who kills another individual, if he killed him before the judges in court, he is liable to be executed. If the killing was not before the judges in court, he is exempt.

בִּפְנֵי בֵּית דִּין, מַאי טַעְמָא חַיָּיב? דִּכְתִיב: ״וּבִעַרְתָּ הָרָע מִקִּרְבֶּךָ״. שֶׁלֹּא בִּפְנֵי בֵּית דִּין – פָּטוּר, דְּהָוְיָא לַהּ עֵדוּת שֶׁאִי אַתָּה יָכוֹל לַהֲזִימָּהּ, וְכׇל עֵדוּת שֶׁאִי אַתָּה יָכוֹל לַהֲזִימָּהּ – לֹא שְׁמָהּ עֵדוּת.

The Gemara explains: In the case of a tereifa who killed before the court, what is the reason that he is liable? He is liable, as it is written: “And you shall eradicate the evil from your midst” (Deuteronomy 13:6), from which it is derived that there is a mitzva for the court to eradicate evil that it witnesses firsthand. In the case where the killing was not before the judges in court, he is exempt, as any testimony against the tereifa is testimony that you cannot render conspiratory testimony. Even if the witnesses testifying that the tereifa committed murder are found to be conspiring witnesses, they cannot be executed, as they conspired to kill a tereifa . And any testimony that you cannot render conspiratory testimony is not characterized as testimony, and is not accepted in court.

וְאָמַר רָבָא: הָרוֹבֵעַ אֶת הַטְּרֵיפָה – חַיָּיב. טְרֵיפָה שֶׁרָבַע, בִּפְנֵי בֵּית דִּין – חַיָּיב, שֶׁלֹּא בִּפְנֵי בֵּית דִּין – פָּטוּר. בִּפְנֵי בֵּית דִּין חַיָּיב, דִּכְתִיב: ״וּבִעַרְתָּ הָרַע מִקִּרְבֶּךָ״. שֶׁלֹּא בִּפְנֵי בֵּית דִּין פָּטוּר, דְּהָוְיָא לַהּ עֵדוּת שֶׁאִי אַתָּה יָכוֹל לַהֲזִימָּהּ.

And Rava says: One who sodomizes a male who is a tereifa is liable to be executed for committing an act of sodomy. And as for a tereifa who sodomizes a male, if he does so before the judges in court, he is liable to be executed. If the act of sodomy was not before a court, he is exempt. The Gemara explains: If he committed an act of sodomy before the court, he is liable, as it is written: “And you shall eradicate the evil from your midst.” If the act of sodomy was not before a court, he is exempt, as any testimony against a tereifa is testimony that you cannot render conspiratory testimony.

הָא תּוּ לְמָה לִי? הַיְינוּ הָךְ! הָרוֹבֵעַ אֶת הַטְּרֵיפָה אִיצְטְרִיכָא לֵיהּ. מַהוּ דְּתֵימָא: לֶיהֱוֵי כְּמַאן דִּמְשַׁמֵּשׁ מֵת, וְלִיפְּטַר? קָא מַשְׁמַע לַן, דְּמִשּׁוּם הֲנָאָה הוּא, וְהָא אִית לֵיהּ הֲנָאָה.

The Gemara asks: Why do I also need this ruling? This case of sodomy is identical to that case of murder; why then does Rava cite two cases with regard to capital transgressions involving a tereifa ? The Gemara answers: It was necessary for him to mention the case of one who sodomizes a tereifa , as there is a novel element introduced in that halakha . Lest you say: Let the status of one who sodomizes a male who is a tereifa be like one who engages in necrophilia, and let him be exempt from execution. To counter this, Rava teaches us that his liability is due to the pleasure that he experiences, and this man who sodomizes a tereifa has pleasure, as, although the legal status of a tereifa is that of a dead person in certain senses, he is, in fact, alive.

וְאָמַר רָבָא: עֵדִים שֶׁהֵעִידוּ בִּטְרֵיפָה וְהוּזַּמּוּ, אֵין נֶהֱרָגִין. עֵדֵי טְרֵיפָה שֶׁהוּזַּמּוּ, נֶהֱרָגִין. רַב אָשֵׁי אָמַר: אֲפִילּוּ עֵדֵי טְרֵיפָה שֶׁהוּזַּמּוּ אֵין נֶהֱרָגִין, לְפִי שֶׁאֵינָן בְּזוֹמְמֵי זוֹמְמִין.

And Rava says: Witnesses who testified with regard to a tereifa that he committed a capital transgression, and then they were rendered conspiring witnesses are not executed, as they conspired to kill one whose status is that of a dead person. Witnesses who are themselves tereifa who were rendered conspiring witnesses are executed. Rav Ashi says: Even witnesses who are themselves tereifa who were rendered conspiring witnesses are not executed, due to the fact that they are not susceptible to a situation where witnesses who rendered them conspiring witnesses can themselves be rendered conspiring witnesses. Witnesses who render the witnesses who are themselves tereifa conspiring witnesses who then are rendered conspiring witnesses are not executed, because they sought to kill a tereifa , whose status is that of a dead person. Therefore, their testimony is testimony that you cannot render conspiratory testimony and is disregarded.

וְאָמַר רָבָא: שׁוֹר טְרֵיפָה שֶׁהָרַג – חַיָּיב, וְשׁוֹר שֶׁל אָדָם טְרֵיפָה שֶׁהָרַג – פָּטוּר. מַאי טַעְמָא? אָמַר קְרָא: ״הַשּׁוֹר יִסָּקֵל וְגַם בְּעָלָיו יוּמָת״. כֹּל הֵיכָא דְּקָרֵינָא בֵּיהּ ״וְגַם בְּעָלָיו יוּמָת״, קָרֵינַן בֵּיהּ ״הַשּׁוֹר יִסָּקֵל״, וְכֹל הֵיכָא דְּלָא קָרֵינַן בֵּיהּ ״וְגַם בְּעָלָיו יוּמָת״, לָא קָרֵינַן בֵּיהּ ״הַשּׁוֹר יִסָּקֵל״.

And Rava says: An ox that is a tereifa that killed an individual is liable to be executed, like any animal that kills a person. And an ox belonging to a person who is a tereifa that killed an individual is exempt. What is the reason for this halakha ? It is as the verse states: “The ox shall be stoned and its owner shall also be put to death” (Exodus 21:29). Based on the juxtaposition between the owner and his ox it is derived: Anywhere that we can read concerning the situation: “And its owner shall also be put to death,” we read, i.e., apply, concerning it: “The ox shall be stoned.” And anywhere that we cannot read concerning it: “And its owner shall also be put to death,” we do not read concerning it: “The ox shall be stoned.” Since the owner of the ox cannot be executed, as he is a tereifa , his ox is also not liable to be stoned.

רַב אָשֵׁי אָמַר: אֲפִילּוּ שׁוֹר טְרֵיפָה נָמֵי שֶׁהָרַג – פָּטוּר. מַאי טַעְמָא? כֵּיוָן דְּאִילּוּ בְּעָלִים הֲווֹ פְּטִירִי, שׁוֹר נָמֵי פָּטוּר.

Rav Ashi says: Even an ox that is a tereifa that killed an individual is exempt. What is the reason for this halakha ? Based on the juxtaposition between the ox and the owner, since if the owner were a tereifa he would be exempt, an ox that is a tereifa that killed an individual is also exempt.

שִׁיסָּה בּוֹ אֶת הַכֶּלֶב וְכוּ׳. אָמַר רַב אַחָא בַּר יַעֲקֹב: כְּשֶׁתִּמְצָא לוֹמַר, לְדִבְרֵי רַבִּי יְהוּדָה – אֶרֶס נָחָשׁ בֵּין שִׁינָּיו הוּא עוֹמֵד. לְפִיכָךְ: מַכִּישׁ בְּסַיִיף, וְנָחָשׁ פָּטוּר.

§ The mishna teaches: If one set a dog against an individual and the dog killed him, or if one set a snake against an individual and the snake killed him, the one who set the dog or the snake is exempt from punishment. If he imbedded the snake’s fangs into another person and caused the snake to bite him and kill him, Rabbi Yehuda deems him liable to be executed, and the Rabbis exempt him. Rav Aḥa bar Ya’akov says: When you analyze the matter you will find that according to the statement of Rabbi Yehuda, venom of a snake stands within its fangs, and in this case the entire action is performed by the individual who imbeds the fang in the other person’s skin. The snake is passive. Therefore, the one who causes the snake to bite is liable to be executed by beheading with a sword as a murderer, and the snake is exempt.

לְדִבְרֵי חֲכָמִים, אֶרֶס נָחָשׁ מֵעַצְמוֹ הוּא מֵקִיא. לְפִיכָךְ: נָחָשׁ בִּסְקִילָה, וְהַמַּכִּישׁ פָּטוּר.

According to the statement of the Rabbis, venom of a snake is discharged by the snake itself. The snake directly causes the death, while the individual who imbeds the fang is merely an indirect cause. Consequently, the snake is executed by stoning, and the one who caused the snake to bite is exempt from execution.

מַתְנִי׳ הַמַּכֶּה אֶת חֲבֵירוֹ, בֵּין בְּאֶבֶן בֵּין בְּאֶגְרוֹף, וַאֲמָדוּהוּ לְמִיתָה, וְהֵיקֵל מִמַּה שֶּׁהָיָה, וּלְאַחַר מִכָּאן הִכְבִּיד וָמֵת – חַיָּיב. רַבִּי נְחֶמְיָה אוֹמֵר: פָּטוּר, שֶׁרַגְלַיִם לַדָּבָר.

MISHNA: In the case of one who strikes another, whether he does so with a stone or with his fist, and the doctors assessed his condition, estimating that it would lead to death, and then his condition eased from what it was, and the doctors revised their prognosis and predicted that he would live, and thereafter his condition worsened and he died, the assailant is liable to be executed as a murderer. Rabbi Neḥemya says: He is exempt, as there is a basis for the matter of assuming that he is not liable. Since the victim’s condition eased in the interim, a cause other than the blow struck by the assailant ultimately caused his death.

גְּמָ׳ תָּנוּ רַבָּנַן: אֶת זוֹ דָּרַשׁ רַבִּי נְחֶמְיָה, ״אִם יָקוּם וְהִתְהַלֵּךְ בַּחוּץ

GEMARA: The Sages taught: Rabbi Neḥemya interpreted this verse in arriving at his ruling. It is written: “If he rises and walks outside