Babylonian Talmud

Rodkinson 1918 — source 17, scan section 8

as stated above. There is a Boraitha. R. Jehuda b. Tabai said: " May I not live to see the consolation of our nation, if I have not killed a collusive witness for the purpose of removing from the mind of the Saducier, who say that, collusive witnesses are not put to death, unless their accused were executed. Said Simeon ben Shata'h to him : I, too, swear by the consolation of our nation that you had shed innocent blood, as the law dictates that witnesses should not be put to death unless both of them are found collusive. Then Jehuda ben Tabai decided that he TRACT MACCOTH (STRIPES). ii shall not render any decision before consulting Simeon ben Shatah. And all his lifetime he used to prostrate himself upon the grave of that witness. And a voice was heard. People thought that this was the voice of the dead one. But Jehuda told them that it was his own voice, saying, " You will see that after my death no voice will be heard." MISHNA VIIL\ It reads [Deut. xvii. 6]: " Upon the evi- dence of two or of three witnesses, shall he that is worthy of death," etc. If the evidence of two persons is sufficient, why does the Scripture mention three? To compare the evidence of three to that of two in the case of collusiveness, as another party of two, make the first party of two collusive, so they make them collusive even if the first is of three. And whence do we know that, even if they were a hundred persons, the evidence of two persons is sufficient? To this it reads: " Witnesses." R. Simeon, however, maintains that as two cannot be put to death, unless both of them are found collusive, so is it if they were three, all of them must be found collusive. And even if their number reaches a hundred, all of them must be found col- lusive before sentencing one of them to death. R. Aqiba, how- ever, maintains that the third witness mentioned in the Scrip- ture was not for the purpose to make for him the punishment more lenient, but, on the contrary, to make it more rigorous — viz., lest one say as the testimony of the third one was super- fluous, because the evidence of two suffices, and, therefore, he should not be punished at all. The Scripture terms the third one in order to make him equal with the former two. From this we see that the verse punishes one, an accomplice who con- joins himself to transgressors, with the same punishment to be inflicted upon the transgressors themselves. And we may learn from this : That so much the more will he who conjoins himself to those who are engaged in meritorious acts, be rewarded equally with them. Three witnesses are also equal to two in case one of them was found a relative or legally unfit for wit- nessing, as it is in the case of two when the testimony is invali- dated, so it is in the case when one of the three was found such. And the same law applies even when their number reaches a hundred, from the expression " Witnesses." Said R. Jose: This is said concerning criminal cases only, but in civil cases, if one was found a relative or unfit, the evidence of the remainder is to be taken into consideration. Rabh, however, said, that as regards this there is no difference between civil and criminal 12 THE BABYLONIAN TALMUD. cases. However, this rule holds good only when the relatives took part in warning the trespasser; but if they did not, the evidence of the others must be taken into consideration, since, if not, what could two brothers do when both saw that some one has killed a person (and there were also some other ones who have seen the murder, should then the testimony of the others be eliminated as void because there were also two brothers) ? GEMARA: Rabha said: The Mishna treats of a case where all of them have testified at once. Said R. A'ha of Difti to Rabbina: How could such a thing be possible with a hundred persons; could all of them testify at once? And he answered: It means that every one of them has testified just as his col- league has finished his testimony. " What could two brothers dof" But how shall the court examine them? Said Rabha: They are to be questioned for what purpose they came here: to testify, or merely to see? If they say, we came to testify, then, if there was a relative or an unfit among them, their testimony is void; but if they say that merely to see, then must be taken into consideration the testi- mony of the others, since what could two brothers do, etc., as illustrated in Mishna. It was taught: R. Jehuda in the name of Samuel said: The Halakha rules in accordance with R. Jose. And R. Nachman said : It rules in accordance with Rabbi. MISHNA /X. : If two persons have seen the crime from one window and two others have seen it from another window, and there was one standing in the middle and warning the criminal, if the two parties could see each other, all of them are consid- ered as one party of witnesses. But if not, they are considered two parties. And therefore if one of the parties was found col- lusive, he (the accused) and they (the collusive) are put to death, and the other party is free. R. Jose, however, maintains that there is no capital punishment unless two witnesses have warned this culprit, as it reads: " Upon the mouth of two wit- nesses." * Another explanation of the words upon the mouth is that the Sanhedrin must not hear the evidence from a dem- onstrator (but they themselves must understand the language of the witness). GEMARA: R. Zuthra b. Tubia in the name of Rabh said: * The term in the Bible is al pe and the Hebrew term for mouth ispe, and he takes it literally. TRACT MACCOTH (STRIPES). 13 Whence do we know that one witness is not relied upon? From [ibid., ibid. 6] : " He shall not be put to death upon the evi- dence of one witness." What does the expression, " one wit- ness, ' ' mean ? If it means that the testimony of one witness does not suffice, this is already stated above, " two witnesses " ; hence it means that if two witnesses saw the crime separately, each from another place, and if they themselves could not see each other, such witnesses are not considered conjoined, so that their testi- mony should be taken into consideration. Furthermore, even if this was from one window, but one has seen it first, and then the other, they are likewise not to be considered conjoined. Said R. Papa to Abayi: Was it necessary to state this after the former statement, that even if each of them has seen the whole crime they are not to be conjoined if they do not see each other? So much the less so if each of them has seen but half of the act. And he answered: He speaks of an adultery case. Rabha said: If both of the witnesses have seen him who warned them, they are considered conjoined. And he said again that the warning suffices even if it comes from the mouth of the killed one. And