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Week 112 - Shabbat - 19 January 2002

SANHEDRIN: CHAPTER 5: MISHNAH 5

If they found for his acquittal, they set him free; and if not, they transfer his sentence to the next day. They would form themselves into pairs, and would eat less, and not drink wine the entire day, and would deliberate the entire night, and the next day they would rise early and come to the Court. One favoring acquittal says, "I found for acquittal, and I find for acquittal in my place." One favoring conviction says, "I found guilty and I find for conviction in my place." One who argued liability may argue for acquittal, but one who argued for acquittal may not retract and argue for conviction, If they erred in the matter, the two scribes of the judges remind them. If they found not guilty, they freed him; and if not, they stand for the count. Twelve find not guilty and eleven find guilty - acquitted. Twelve find guilty and eleven find not guilty; and even if eleven favor acquittal and eleven favor conviction, and one says, "I do not know"; and even if twenty-two favor acquittal or favor conviction, and one says, "I do not know" - they add judges. How many do they add? Two, two, until seventy-one. Thirty-six favor acquittal and thirty-five favor conviction - not guilty; thirty-six favor conviction and thirty-five favor acquittal - they discuss one against the other, until one of those favoring conviction sees the words of those favoring acquittal.

Kehati

This mishnah teaches how the lawsuit is completed in capital litigation.

If they - the judges, found for his acquittal - that the defendant is not guilty, they set him free - on the same day; and if not - if they found him guilty, they transfer his sentence - postpone the conclusion of the judgment - to the next day - as was taught above: "capital suits are completed on the same day on acquittal, and on the following day on conviction" (4:1). Once they postponed his sentence to the next day, they would - immediately - form themselves into pairs - or larger groups, in order to study his case, and would eat less, and not drink wine the entire day - in which they discussed his case, and would deliberate the entire night - each one with his partner, or by himself, and the next day they would rise early and come to the Court - and continued the discussion once again.

One favoring acquittal says, "I found for acquittal - yesterday I said that I find the defendant not guilty, and I find for acquittal in my place" - and I still maintain my opinion. One favoring conviction says, "I found guilty - yesterday I said that I find the defendant guilty, and I find for conviction in my place" - and I maintain this opinion. There are instances in which judges may change their opinion, and one who - yesterday - argued liability - the defendant, may - retract and - argue for acquittal - today, but one who argued for acquittal may not retract and argue for conviction - during the discussion (see 4:1, above, where we explained that he may retract and find for conviction at the conclusion of the judgment). If they the judges, erred in the matter - and forgot something that they had said the previous day, the two scribes of the judges remind them - for they recorded the words of those favoring acquittal and the words of those favoring conviction as was taught above (4:3).

If they found not guilty - those favoring conviction changed their opinion in favor of the defendant, they freed him - they announced to him that he is not guilty and if not - if those favoring conviction did not change their opinion, they stand for the count - they count the opinions, and if Twelve find not guilty and eleven find guilty - there is a majority of one for acquittal, so he is acquitted - for a verdict of "Not guilty" is decided by a majority of even one. Twelve find guilty and eleven find not guilty - there is a majority of only one for conviction, and it was taught that a decision for conviction may not be taken by a majority of one (4:1, above); and even if eleven favor acquittal and eleven favor conviction the opinions are balanced, and one says, "I do not know" - and there is no decision, and, even if twenty-two favor acquittal or favor conviction, and one says, "I do not know" - it is as if he does not sit in judgment; it follows that this is a Court with only twenty-two members, and the law is that capital cases may not be decided, either for acquittal or for conviction, by less than twenty-three judges; in all these cases - they add judges. How many do they add? Two, two, until seventy-one - they add two judges, and if these are also divided in their opinions and there is no decision, neither in the defendant's favor by a majority of one, or against the defendant by a majority of two, they add another two, and so on until seventy-one. And if in the Court of seventy-one, thirty-six favor acquittal and thirty-five favor conviction - then he is not guilty - for there is a majority of one in his favor; and if thirty-six favor conviction and thirty-five favor acquittal - i.e., a majority of only one for conviction, they - the judges, discuss one against the other - debate among themselves, until one of those favoring conviction sees the words of those favoring acquittal - until one of the judges favoring conviction will be persuaded and join those favoring acquittal, and the judgment will be decided by a majority of one in favor of the defendant. The opposite also holds true: if one of the judges favoring acquittal retracts and joins those favoring conviction (for in the conclusion of the judgment even one arguing for acquittal may retract and argue for conviction, as was mentioned above), the judgment is decided against the defendant; The mishnah did not use the possibility of a decision for conviction, because the Tanna favors acquittal. According to the Gemara, if the judges' opinions do not change and there is no decision, the defendant is freed due to doubt.

SANHEDRIN: CHAPTER 6: MISHNAH 1

When the judgment is concluded, they take him out to stone him. The place of stoning was outside the Court, as it is written, "Bring forth him that has cursed" (Lev. 24:14). One stands at the entrance to the Court and the scarf in his hand, and one man rides the horse distant from him, so that he will see him. One says, "I can argue for his acquittal" that one waves with the scarf, and the horse runs and stops him. And even if he says, "I can argue for my acquittal," they return him, even four and five times, provided there is substance in his words. If they found for his acquittal, they freed him; and if not, he goes out to be stoned. And a crier goes out before him: "So-and-so the son of so-and-so is going out to be stoned because he committed such-and-such a transgression, and so-and-so and so-and-so are his witnesses; whoever knows something in his favor shall come and argue for him.

Kehati

This mishnah continues to teach that even after the defendant has been found liable, and they have already taken him to the place of stoning, if one of them comes and says, "I can argue for his acquittal," they bring him back. The mishnah speaks of stoning, because this is listed first among the four types of Court-imposed death penalty, as will be taught in the following chapter, but the law applying to stoning also applies to the other types of Court-imposed death penalty (Rambam).

When the judgment is concluded - and a sentence of stoning is passed, they take him out to stone him - on the same day his judgment was concluded. The place of stoning was outside the Court - at a distance from the Court, so that there would be a delay until the execution of the sentence, and in the meantime they could come to argue on his behalf and save him, as it is written, "Bring forth him that has cursed" - from which we learn that the place of the killing was outside the Court (see Tosefot Yom Tov and Tosefot Rabbi Akiva Eiger).

One stands at the entrance to the Court - when they took the convicted defendant to be stoned, and the scarf in his hand - with which to wave when necessary, as will be explained in the mishnah, below, and one man rides – on - the horse distant from him - the person standing at the entrance to the Court, so that he will see him - at such a distance that he will be able to see him if he waves his scarf. And if one says - before the Court, "I can argue for his - the man whom they took out to be stoned, acquittal," that one - the person standing at the entrance to the Court, waves with the scarf - to signal that they should delay the person going out to be stoned, and - the person riding on - the horse runs and stops him - until the Court investigates if there is any substance in the words of the person who came to argue for his acquittal.

And even if he - the convicted person himself, says, "I can argue for my acquittal," they return him - to the Court, to hear his words, even four and five times, provided there is substance in his words - the Gemara explains that the first and second times they return him, even if there is no substance in his words, lest his arguments were blocked by fear, and perhaps in the meantime his reasoning returned to him and he will remember his arguments. And if they did not find any substance in his words they take him out, and they send with him two scholars, so that if he states once again, "I can argue for my acquittal," they examine his words on the spot, and if there is substance in his argument, they return him to the Court, even several times. If - after they returned him, they found for his acquittal, they freed him - they declared him, "Not guilty"; and if not - if they did not find for his acquittal, he goes out to be stoned - in accordance with his sentence.

And a crier goes out before him - and announces: "So-and-so the son of so-and-so is going out to be stoned because he committed such-and-such a transgression, and so-and-so and so-and-so are his witnesses - the Gemara explains that the crier states in detail in his announcement that the defendant committed such-and-such a transgression on such-and-such a day and at such-and-such an hour and in such-and-such a place, perhaps by this others will come to refute the witnesses against him. And the crier concludes: whoever knows something in his favor shall come and argue for him" - and if one person said, "I can argue for his acquittal," they delay execution, as was stated above.

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