We are continuing in chapter 9 of tractate Sanhedrin, Mishnah 3. The Mishnah continues discussing the rules applying to convicted murderers, and states: "Rotzeach shenisarv ba'acherim - kulan peturin" - A murderer who became mixed up with others, all of them are exempt. This means a murderer whose identity became mixed up with the identities of other people who are not murderers.
Two people fired guns, and it is not known which of them is the murderer.
One person is a murderer and one person is not a murderer, and their identities became mixed up and it is not known who is who.
In all these scenarios everyone is exempt, and none of them are brought to trial, since one cannot bring to trial and convict or punish a person unjustly.
Chisuri mechsara - the law of an animal sentenced to death:
At this point there is a chisuri mechsara in the Mishnah - words missing in its text, and these are perhaps the most important missing words in the entire Mishnah: just as a person may be convicted and sentenced to death, so too an animal may be convicted and sentenced to death. A number of reasons may bring this about, and we have already dealt in the tractate with cases where a court of twenty-three is required to convict. All animals sentenced to death, for whatever reason, are called by the general term "shor haniskal" (an ox to be stoned).
From the moment the animal is convicted, for example a cow that killed a person, it is called a shor haniskal, its law is to be stoned and it is prohibited for any benefit. One may not derive any benefit from it, and it is like a cow that is no longer kosher. And now that cow becomes mixed up with other cows.
Although the usual rule for a mixture of items is bitul berov (nullification in the majority), where the minority loses its identity within the large majority, this rule has limitations, at least rabbinically. One of the most significant of these is the law of a "beriah" - a whole creature, which even if dead is considered too significant to be nullified, and does not lose its identity.
Therefore, a cow that is a shor haniskal and whose verdict was already finalized, which became mixed up with a hundred other cows - the entire mixture becomes prohibited for benefit, and all one hundred and one cows are prohibited, and therefore all of them must be stoned. It is worth clarifying that according to halachah, as long as the cow's verdict was not finalized and it became mixed up with others, all of them are released and there is no prohibition here at all; but once its verdict is finalized, the entire mixture requires stoning and subsequent burial.
The opinion of Rabbi Yehudah:
Rabbi Yehudah disagrees and holds that regarding animals sentenced to death, when there is a mixture of one liable animal among a hundred that are not liable, "konesin osan lekipah" - they gather them into a cell - there is no need for the entire process of stoning all of them, but rather they can be placed in a closed space and left to die on their own, without the bother of taking them up, pushing them down, and carrying out the stoning. The halachah does not follow Rabbi Yehudah at all.
The most important point here is to pay attention to the fact that the Mishnah reads as it does only because it is missing words: if it were read plainly, without the chisuri mechsara, it would sound as if Rabbi Yehudah is talking about human beings - and this is not the case.
Those liable to death penalties who became mixed up with one another:
Here the Mishnah introduces a new topic: "Kol chayavei misos shenisarvu zeh bazeh - nidonin bekalah" - anyone liable for death penalties who became mixed up with one another is judged with the more lenient one. When two prisoners are convicted of capital offenses, but their punishments are different - one is liable for stoning, the most severe death penalty, and the other for strangulation, the most lenient - and it is not known who is liable for which, both are given the more lenient punishment. This is because we cannot punish a person with a penalty they do not deserve, and to ensure that the one who is not liable for stoning is not stoned.
The Order of Severity of the Four Death Penalties:
This matter raises the question of the order of severity. We have already dealt with this, but we will review it again. The halachah, following the view of the Sages, is:
Stoning - the most severe of all.
Burning.
Decapitation - beheading with a sword.
Strangulation - the most lenient of the court-imposed death penalties.
However, as we saw earlier, there is a dispute regarding two parts of this order. Rabbi Shimon agrees that the two most severe are stoning and burning, and the two most lenient are decapitation and strangulation, but he reverses the order within each pair: in his view, burning is more severe than stoning, and strangulation is more severe than decapitation.
Those to Be Stoned Mixed with Those to Be Burned:
The universally accepted rule is that when two people liable for different death penalties become mixed up, both are judged with the more lenient of the two. The only question is which one is the more lenient. Therefore, regarding those to be stoned who became mixed up with those to be burned, Rabbi Shimon says, "Nidonin bisekila" - they are judged with stoning, because in his view, burning is more severe; and the Sages say, "Nidonin bisereifah" - they are judged with burning, because in their view, stoning is more severe.
"Amar lahen Rabbi Shimon: ilu lo haysah sereifah chamurah - lo nitenah levas kohen shezinsah" - Rabbi Shimon said to them: if burning were not more severe, it would not have been given to a kohen's daughter who committed adultery. Rabbi Shimon brings a proof that burning is more severe than stoning: if it were not, the punishment of burning would not have been given as a special, more stringent penalty for a kohen's daughter who committed adultery.
And the comparison is as follows: the list of those liable for stoning includes a betrothed maiden (na'arah me'orasah) - a girl aged twelve and a half or less who has already been betrothed with money and is considered halachically married, but has not yet actually wed and moved to her husband's home. If she is a virgin and still in her father's house, and willingly has relations with another man, her penalty is stoning. On the other hand, a married kohen's daughter who commits adultery faces a more severe punishment due to her elevated status, and her penalty is burning. From this, Rabbi Shimon says, it is evident that burning is more severe than stoning.
The Sages reject this proof: the penalty of burning for a kohen's daughter only applies to a married woman who has already begun living with her husband, and this does not apply at all to a betrothed maiden. According to their view, the matter is simple: for ordinary adultery, the penalty is strangulation; for a kohen's daughter, the penalty is elevated to burning; and if the case involves a betrothed maiden, the penalty is even more severe - stoning. This also applies to a betrothed kohen's daughter, since the penalty of burning for a kohen's daughter is stated solely regarding one who is fully married.
"Amru lo: ilu lo haysah sekilah chamurah - lo nitenah lemegadef vela'oved avodah zarah" - they said to him: if stoning were not more severe, it would not have been given to a blasphemer and an idol worshiper. The Sages bring their own proof: the most severe of all transgressions are blasphemy - cursing and reviling Hashem, and idolatry - worshiping false gods. Both of these strike at the very foundation of a person's relationship with Hashem and breach it. Since the penalty of stoning is given for them, it proves that it is the most severe death penalty of all. Rabbi Shimon does not necessarily accept this proof.
Those to Be Decapitated Mixed with Those to Be Strangled:
In the second pair: one or more people who are liable to execution by decapitation - such as a murderer, who became mixed up with a person liable to strangulation - such as an adulterer. When it is not known who is who, they are again judged with the more lenient of the two, and they disagree as to which is more lenient: Rabbi Shimon says "basayif" - with the sword, meaning execution by the sword is the more lenient punishment; and the Sages say "bechanek" - with strangulation.
The argument here is based on the law of the subverted city (ir hanidachat) - a corrupt city where the majority of the inhabitants practice idol worship. The halachah is that the participants in the idol worship are decapitated with a sword, while the instigator, the person who caused the masses to worship idols, is sentenced to stoning according to the Sages, as we saw in the Mishnah - and this makes sense, since the one who corrupts and instigates receives a more severe punishment. However, Rabbi Shimon holds, based on textual derivations and technical reasons, that the punishment for the instigator is strangulation. From this comes his proof: if the instigator is strangled and all those who follow him are executed by the sword, it must be that strangulation is more severe than the sword. But according to the Sages, who hold that his judgment is not strangulation but stoning, there is no proof here at all.
In summary: The halachah follows the opinion of the Sages, and the order of severity of the death penalties is stoning, burning, execution by the sword, and finally strangulation. And when people liable to death penalties become mixed up with one another, they are all judged with the most lenient punishment among them according to this order.