Babylonian Talmud

Rodkinson 1918 — source 10, scan section 68

testimony, as soon as they were proved collusive as to the theft, it was established that their testimony as to the slaughtering was incompetent, and why should they pay for the testimony of the slaughtering ? It may be explained that the case was that they were proved collusive as to the slaughtering first. But still, when they were subsequently proved collusive as to the theft it was established that they were incompetent, and why should they pay for their testimony of slaughtering ? The Halakha prevails that the Mishna treats of a case where their testimony was given at one and the same time, and subsequently they were proved collusive. Rabha said : Witnesses that testified that one has committed murder and the court found the accused guilty on their testimony, and two other witnesses subsequently denied the testimony, and still another set of two witnesses testified that the first two i64 THE BABYLONIAN TALMUD. were with them at another place at the alleged time of the murder {alibi), which testimony makes them collusive (according to Scrip- ture), they must suffer the death penalty, for denial is the begin- ning of collusion which is subsequently proved by the last wit- nesses. And he said again : My theory is based upon the following Boraitha : *' If two witnesses testify that a certain person blinded his slave's eye and thereafter knocked out one of his teeth, and they also testify that the owner of the slave admitted it, and sub- sequently the witnesses are found collusive, they must pay to the slave the value of the eye." Now, how is the case? Shall we assume that it was as stated without any other set of witnesses to deny the former testimony, and the slave was manumitted on their testimony, then the expression ought to be " and they pay to him (instead of * to the slave,' for he was already manumitted) the value of his eye, and to his master the value of an uninjured slave " ? Another proof is that the case is that there was no denial — that they also testify that the owner admitted it, for what purpose it this ? We must therefore say that another set of two witnesses testify that he knocked out one of his teeth first, and then blinded his eye, in which case the owner must pay him the value of the eye ; then came a third set of witnesses and testified that he first blinded his eye and then knocked out his tooth, in which case the owner must pay him only the value of the tooth, because there is a contradiction between the first and the middle sets, and the statement that the owner admitted it means that he is more satisfied with their testimony, as he has to pay only the value of a tooth, and the statement that they were found col- lusive has reference to the middle set, and nevertheless it is stated that they must pay the slave the value of the eye, hence that denial is the beginning of collusion. (For if it is not, why should the law of collusion apply to them after their testimony became incompetent?) Said Abayi : Nay, not as you say, that because if there would be three sets of witnesses, as soon as the middle one was denied by the first one the third set could not make it collusive. The case, however, was that the set which became afterwards collusive is the first set, and your proof from the fact that the Boraitha does not state that the collusive set has to pay to the master can be explained thus : The second set did not deny the fact, but only reversed the order, i.e., they say to the first set, " On that day on which you claim that the master had blinded his eye," etc., ** you were with us and you could not witness the crime ; but we did witness on another day that the master first TRACT BABA KAMA (THE FIRST GATE). 165 knocked out his tooth and then bHnded his eye." And therefore the Boraitha does not state that they must pay the value of the slave, etc., because the slave becomes free even on their testimony ; and I take this from the last part of the same Boraitha : '' We testify that a certain person knocked out his slave's tooth and blinded his eye, and this is just as the slave says, and thereafter they were proved collusive, they pay the value of the eye to the owner." Now, how was the case? If the second set does not admit any wounding at all, then the first set must pay to the owner the value of the whole slave. It is therefore apparent that all admit that he wounded him, but that they reverse the order of the wounding, and thus prove them collusive. Now, as the last part treats of a case where they became collusive through the reversal, the first part must also treat of a similar case. (Says the Gemara 🙂 After all, let us see how the case was : If the second set testify that it happened on a later date, then the first must still pay the full value of the slave, because on the day on which they testify it happened the slave had not to be manumitted? We must therefore say that the second set testify that it happened on an earher date. But still, even in such a case, if the slave had not summoned him to court before the testimony of the first was given, they rrust still pay the full value of the slave ; for be- fore their testimony the owner was not subject to liability (to manumit the slave) ? It must therefore be said that the case was after judgment was given. R. Zera opposed : Whence do we know that money must be paid ? Perhaps when he only blinded his eye he is manumitted because of that, if when he only knocked out one of his teeth he is manumitted because of that, and when he did both — blinded his eye and knocked out one of his teeth — he is also only manu- mitted and no money is paid. Said Abayi : As to your question, the verse reads, " for the sake of his tooth," which does not mean for the sake of his tooth and eye ; and also " for the sake of his eye," which does not mean for the sake of his eye and tooth. Regarding witnesses whose testimony was first denied and then proved collusive (as to which Abayi and Rabha differ above), R. Johanan and R. Elazar also differ : One holds that they are put to death, the other holds that they are not. It may be inferred that the one who holds that they are not put to death is R. Elazar, for he said elsewhere that witnesses whose testi- mony was only denied (but not proved collusive), in a case in which human life was involved, have to suffer the penalty of i66 THE BABYLONIAN TALMUD. stripes. Now, if we should assume that R. Elazar is the one who holds that they have to suffer the death penalty if proved collusive, why should they be punished with stripes in case their testimony was only denied? is it not a ''negative process" that entails the death penalty by the court, and in such cases no stripes are administered ? We must therefore say that it is R.