Introduction The opening clause of this mishnah deals with a murderer who is mixed up with others who are not murderers, and the court does not know which one was the murderer. The second clause deals with people condemned to die by different forms of execution who become mixed up together such that the court does not know who gets which punishment..
If a murderer became mixed up with others, they are all exempted [from the death penalty]. R. Judah said: they are placed in a cell. If a condemned murderer becomes mixed up in a crowd of people so that no one can identify which one is the murderer and which one is not, none of them may be executed. Although this sounds like a strange and highly unlikely prospect, it nevertheless teaches the principle that unless the court is 100 per cent sure of the identity of the murderer, he may not be killed. According to Rabbi Judah, the court cannot leave this problem without a solution. They would therefore put all of the people into prison until the matter was clarified. [The Talmud has many difficulties in understanding this ruling of Rabbi Judah, since it seems to unfairly punish innocent people. Therefore they understand this as only applying to certain, limited cases.]
If a number of persons condemned to different types of sentences became mixed with one another, they are executed by the most lenient. If criminals condemned to stoning [became mixed up] with others condemned to burning, Rabbi Shimon said: they are stoned, because burning is severer. But the sages say they are burned, because stoning is severer. (1) Rabbi Shimon said to them: “If burning was not severer, it would not be decreed for a priest's adulterous daughter.” (2) They replied: “If stoning was not severer, it would not be the penalty of a blasphemer and an idolater.” If men condemned to decapitation became mixed up with others condemned to strangling, Rabbi Shimon said: “They are [all] decapitated.” The sages say: “They are [all] strangled.” The remainder of the mishnah deals with the intermixing of persons condemned to different types of death penalties. The principle is stated very clearly in the beginning of the section that in such a case they all receive the most lenient of the death penalties to which any one person in the group had been condemned. The remainder of the disputes between Rabbi Shimon and the Sages are over which types of execution are more serious than the others. This dispute was already discussed in the beginning of chapter seven. Rabbi Shimon believes that burning is more serious than stoning, whereas the Sages believe that stoning is more serious. Each side tries to prove his case by bringing an example of a serious crime which is punished by one of these types of execution. According to Rabbi Shimon, the fact that an adulterous daughter of a priest (kohen) is punished by burning proves that burning is more serious. According to the Sages, the fact that the blasphemer and the idol worshipper are punished by stoning proves that stoning is more serious. Finally, in the end of the mishnah we learn that according to Rabbi Shimon strangling is more serious than decapitation, whereas according to the Sages, decapitation is more serious. Despite these disputes, everyone agrees that when in doubt a person is punished by the least serious form of the death penalty.
Questions for Further Thought:
• Why might Rabbi Shimon think that an adulterous daughter of a priest is a prime example of a very serious crime, one which is punished by the most serious type of death penalty? Why might the Sages disagree?