Makkos Chapter 1, Mishnah 9: One Group of Witnesses

Sanhedrin and Punishments Courts and Monetary Law

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Makkos, chapter 1, mishnah 9. This mishnah continues to deal with the question of what constitutes a single set of witnesses, and when the witnesses are not considered one set.

The case in the mishnah:

Two witnesses see the murderer from one window, and two other witnesses see him from another window, and one person warns the murderer beforehand and stands between them, in a situation where some of them can see one another.

What defines a single testimony:

The set at the one window and the set at the other window do not see each other, but both of them see the one giving the warning who stands between them, and he sees them.
The sets see each other, even though they do not see the one giving the warning.

In both of these situations it is considered a single set of witnesses, and therefore they must all be counted together with regard to hazamah and the like.

When they do not see each other:

If they cannot see each other, they are considered two separate sets of witnesses. Therefore, if one of the sets was found to be conspiring and lying, and the other was not found to be lying, the result is:

The murderer is put to death - since two valid witnesses still stand against him.
The conspiring witnesses are put to death - since those who tried to testify against him were proven to be conspirators, and their judgment is by the rule of "as he conspired."
The second set is exempt - it bears no liability at all; on the contrary, its testimony is accepted.

The opinion of Rabbi Yosei:

Rabbi Yosei says: "The murderer is not put to death unless the witnesses themselves are the ones who give the warning" - that is, they are the ones who issue the warning, as the verse states: "al pi shnei edim" - "by the mouth of two witnesses." Rabbi Yosei understands that the word "pi" (mouth) in the verse refers not only to the testimony about the act, but also to the warning, the caution issued against the act.

A further explanation of the verse:

Another explanation of this verse is that the Sanhedrin may not hear testimony through an interpreter; they must be able to hear it directly from the mouths of the two witnesses and understand the testimony themselves.

In summary: In this Mishnah we learned the rules for combining separate groups of witnesses into a single testimony - either by their seeing one another, or by seeing the person who issues the warning standing between them; the law when they are considered two separate groups and one of them is contradicted; and the opinion of Rabbi Yosi, who derives from "al pi shnei eidim" that the warning must come from the mouths of the witnesses themselves, as well as the additional explanation that the Sanhedrin does not hear testimony through an interpreter.

Original maamar

אות מכות א:ט

הָיוּ שְׁנַיִם רוֹאִין אוֹתוֹ מֵחַלּוֹן זֶה וּשְׁנַיִם רוֹאִין אוֹתוֹ מֵחַלּוֹן זֶה וְאֶחָד מַתְרֶה בוֹ בָּאֶמְצַע, בִּזְמַן שֶׁמִּקְצָתָן רוֹאִין אֵלּוּ אֶת אֵלּוּ, הֲרֵי אֵלּוּ עֵדוּת אַחַת. וְאִם לָאו, הֲרֵי אֵלּוּ שְׁתֵּי עֵדֻיּוֹת. לְפִיכָךְ אִם נִמְצֵאת אַחַת מֵהֶן זוֹמֶמֶת, הוּא וָהֵן נֶהֱרָגִין וְהַשְּׁנִיָּה פְּטוּרָה. רַבִּי יוֹסֵי אוֹמֵר, לְעוֹלָם אֵין נֶהֱרָגִין עַד שֶׁיְּהוּ פִּי שְׁנֵי עֵדָיו מַתְרִין בּוֹ, שֶׁנֶּאֱמַר (דברים יז) עַל פִּי שְׁנַיִם עֵדִים. דָּבָר אַחֵר, עַל פִּי שְׁנַיִם עֵדִים, שֶׁלֹּא תְהֵא סַנְהֶדְרִין שׁוֹמַעַת מִפִּי הַתֻּרְגְּמָן: In a case where there were two witnesses observing an individual violating a capital transgression from this window in a house, and two observing him from that window in a house, and one person was forewarning the transgressor in the middle between the two sets of witnesses, the halakha depends on the circumstances. In a situation where some of the witnesses observing from the two windows see each other, the testimony of all these witnesses constitutes one testimony, but if they do not see each other, the testimony of these witnesses constitutes two independent testimonies. Therefore, as two independent sets of witnesses, if one of the sets was found to be a set of conspiring witnesses, while the testimony of the other set remained valid, both he, the one accused of violating the capital transgression, and they, the conspiring witnesses, are executed, and the second set, whose testimony remained valid, is exempt. Rabbi Yosei says: Transgressors are never executed unless his two witnesses are the ones forewarning him, as it is stated: “At the mouth of two witnesses…he who is to be put to death shall die” (Deuteronomy 17:6), from which it is derived that it is from the mouths of the two witnesses that the accused must be forewarned, and forewarning issued by someone else is insufficient. Alternatively, from the phrase “at the mouth of two witnesses” one derives that the judges must hear the testimony directly from the witnesses, and the Sanhedrin will not hear testimony from the mouth of an interpreter.