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Week 112 - Friday - 18 January 2002

SANHEDRIN: CHAPTER 5: MISHNAH 3

If one says, "On the second of the month," and one says, "On the third of the month" - their testimony stands, for this one knows of the intercalation of the month, and this one does not know of the intercalation of the month. If one says, "On the third," and one says, "On the fifth" - their testimony is cancelled. If one says, "At the second hour," and one says, "At the third hour" - their testimony stands. If one says, "At the third," and one says, "At the fifth" - their testimony is cancelled. Rabbi Yehudah says, It stands. If one says, "At the fifth," and one says, "At the seventh" - their testimony is cancelled, for at the fifth the sun is in the east, and at the seventh the sun is in the west.

Kehati

The previous mishnah taught that investigations are more severe than examinations, for in investigations, even if the witnesses do not contradict one another, but one of them says, "I do not know," their testimony is cancelled. This mishnah teaches that even in investigations there are instances in which the words of the witnesses are not identical, but their testimony stands.

If one - witness says, "On the second - day - of the month - the defendant committed the transgression," and one says, "On the third of the month" - but they both say, "On such-and-such a day of the week," e.g., one of them says, "On the fourth day of the week, on the second of Kislev," and the other one says, "On the fourth day of the week, on the third of Kislev," their testimony stands - because they both refer to the same day; this is not an instance of contradiction, but rather for this one - the one who says, the second of the month, knows of the intercalation of the - previous - month - which contained thirty days, and this one does not know of the intercalation of the month - and thinks that the previous month was "deficient," containing twenty-nine days, and according to his calculation this same fourth day of the week was the third day of the month. It follows from this that there is no difference between them (regarding the topic of the intercalation of the month, see the commentary on 1:2, above). The Gemara explains: This refers to a case up to the middle of the month. If, however, they contradicted one another after the first half of the month, e.g., one says, "On the sixteenth of the month," and the other one says, "On the seventeenth," their testimony is cancelled, for after the end of the first half of the month, everyone knows when Rosh Hodesh fell.

If one says, "On the third - of the month," and one says, "On the fifth - of the month," their testimony is cancelled - since there is a difference of two days between them, they negate one another, for a person does not err by two days. If one says, "At the second hour" - after the beginning of the day, and one says, "At the third hour" - we have already explained (Ber. 1:2) that the hours mentioned in the mishnah are relative hours (sha'ot zemaniyot), and not a fixed period of time, in the modern sense of "hour." The day, from the morning to the evening, was divided into twelve parts, and each one-twelfth of the day was called a "relative hour." It follows from this that the hours of the day were counted from the morning (according to one opinion, from alot hashahar; according to another opinion, from netz hahamah) until the evening (according to one opinion, until tzet hakokhavim the emergence of three medium-sized stars; according to another opinion, until the end of the sunset). Beginning with the evening, the count of the hours of the night began, and once again the night was divided into twelve parts. It follows that the length of a daytime hour is not equal to the length of a nighttime hour (except at the equinox). This mishnah teaches, therefore, that if one witness says that the occurrence was two hours after the day began, and the second one says, three hours, their testimony stands - because a person is liable to err by one hour, and this is not a case of contradiction. But If one says, "At the third" - hour, and one says, "At the fifth" - hour, their testimony is cancelled - for it is not normal for a person to err by two hours, and they contradict one another.

Rabbi Yehudah says, It - his testimony, stands - for a person is liable to err, even by two hours. But if one says, "At the fifth" - hour, and one says, "At the seventh" - hour, their testimony is cancelled - even according to the opinion of Rabbi Yehudah, for the following reason: for at the fifth - hour from the beginning of the day, the sun is in the east - for this is before noon, and at the seventh the sun is in the west - for this is already in the afternoon, and a person does not normally make such an error.

SANHEDRIN: CHAPTER 5: MISHNAH 4

And afterwards they bring in the second and examine him. If their words were found to correspond, they open with acquittal. If one of the witnesses says, "I can argue for his acquittal," or one of the pupils, "I can argue for his conviction" - they silence him. If one of the pupils said, "I can argue for his acquittal," they raise him and seat him among them, and he would not descend from there the entire day. If there is substance in his words, they listen to him. And even if he says, "I can argue for my acquittal," they listen to him, provided that there is substance in his words.

Kehati

This continues the previous mishnah, and teaches that after the examination of all the witnesses, the judges begin the discussion.

And afterwards - after the examination of the first witness, they bring in the second - witness - and examine him - in the manner in which they examined the first one, with investigations and examinations, and they similarly examine the witnesses with inquiries. If their words were found to correspond - there is no contradiction between the witnesses they - the judges, open - begin the discussion - with acquittal - words in the defendant's favor; according to one opinion in the Gemara, they say to him, "If you did not do this deed about which they have testified against you, do not fear their words" (Sanh. 32b; this is also mentioned by the commentators).

If one of the witnesses says, "I can argue for his acquittal" - I want to prove that the defendant is innocent; and certainly if he said, "I can argue against him," or one of the pupils - sitting in the rows before the judges (see 4:4, above) said, "I can argue for his conviction" - I have proof that the defendant is liable, they silence him - the Gemara (Sanh. 32b) quotes a baraita: "if one of the witnesses said, 'I can argue for his acquittal,' whence that they do not listen to him? From the verse, 'but one witness shall not testify' (Num. 35:30) - whether for acquittal or for conviction (see Tosefot Yom Tov; Rambam, Hil. Edut 5:8). Whence, if one of the pupils said, 'I can argue for his conviction,' that we do not listen to him? From the verse, 'but one witness shall not testify against any person that he die' (ibid.) - he is not allowed to testify 'that he die,' i.e., for conviction, but he may testify for acquittal" (Sanh. 34a). It follows from this that if one of the pupils said, "I can argue for his acquittal," they raise him - to the place where the Court is sitting, and seat him among them - the judges, and he - that pupil, would not descend from there the entire day - even if there is no substance in his words, so that his going up would not be the cause of a descent for him (Sanh. 42a), for if they were to bring him down in front of everyone, this would embarrass him (Rashi, ibid.).

If there is substance in his - the pupil's, words - they find in them a substantive proof for the acquittal of the defendant, they listen to him - and he never descends from there (a baraita in the Gemara; see also Tosefot Yom Tov); according to Hameiri: he does not descend from there as long as this same matter is before them, and they have not completed it. And his vote is added to those favoring acquittal.

And even if he - the defendant, says, "I can argue for my acquittal" - I want to argue in my own defense, they listen to him, provided that there is substance in his words - i.e., they examine his words, and if he said something of substance, they consider his argument.

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