1) TWO DEATH SENTENCES
QUESTION: The Mishnah teaches that when a person commits two different sins for which he is liable for two different forms of death penalty, he receives the harsher of the two death penalties. The Gemara asks that this is obvious. After all, one should not be given an easier death as a result of doing more severe sins. Rava answers that in the case of the Mishnah, the transgressor committed the less severe sin first, and after he was sentenced to death for that sin he committed the second, more severe sin. One might have thought that after he is convicted for his first sin, he is considered dead already and whatever he does afterwards does not change his death. The Mishnah teaches that this is not so; rather, he indeed can become liable for a more severe form of death.
TOSFOS cites a Halachic principle that seems to conflict with the teaching of the Mishnah. The Gemara in Makos (5a) and in other places teaches that testimony given by witnesses who cannot become Edim Zomemim is not acceptable testimony. In the case of the Mishnah here, before the person commits the second crime he is already considered dead. Since the witnesses who testify about his second sin are not attempting to have him put to death (since he is already condemned to die), they will not receive that punishment if they are found to be Edim Zomemim. The Gemara in Makos states explicitly that when witnesses are found to be Edim Zomemim for testifying against a person who had already been sentenced to death, they do not receive the punishment they attempted to give the defendant because he was already considered dead. Why, then, does the Mishnah here accept the testimony of the witnesses about the second sin, which causes the transgressor to endure a harsher death? Their testimony should not be acceptable since they cannot be made into Edim Zomemim!
(a) TOSFOS answers that there is a precedent from a case in the Gemara earlier (78a) to accept the witnesses' testimony about the second sin. The Gemara there discusses a case in which a person commits the sin in front of Beis Din. The Gemara there says that a person whose death is imminent can be convicted of killing only if he does the act in front of Beis Din. He is not sentenced to death if he kills in any other manner, because of the reason mentioned above -- the witnesses cannot be made into Edim Zomemim since he is already considered dead. When, however, he commits the act in front of Beis Din, he may be put to death for the sin of murder, because the verse (Devarim 19:19) states that Beis Din has an obligation to "remove the evil from your midst." This obligation requires Beis Din -- when it witnesses a sin committed in its presence -- to remove the evildoer. Hence, when the sin done in front of Beis Din is the second, more severe sin that the person did, he must receive the harsher punishment.
(b) Tosfos answers further that since the first verdict still may be overturned (such if other witnesses come forward in his defense, or if they make the first set of witnesses into Edim Zomemim, which they may do until he is executed), the witnesses to the second act are not considered witnesses who cannot be made into Edim Zomemim. (The Gemara in Makos, in contrast, refers to a case in which two witnesses testify that a person, who was convicted of killing on Sunday, killed on Monday, and then those two witnesses are found to be Edim Zomemim. They are not punished, because the man about whom they testified was already considered dead. The reasoning that he might be exonerated is not applied in order to kill witnesses who are not deserving of death. See MAHARSHA.)
The ARUCH LA'NER asks that Tosfos omits a seemingly obvious answer: the witnesses for the first and second transgressions are the same witnesses, and the sins happened one after the other. If the witnesses are found to be Edim Zomemim regarding the second act, then they will also not be believed with regard to the first. The Aruch la'Ner suggests that Tosfos does not give this answer because the Gemara cannot be interpreted in such a manner. Rava clearly states that the person sinned, was convicted and sentenced, and then he sinned again. Since the sentencing may be done only the day after the hearing, it is not possible that the Gemara is dealing with a case in which both sins occurred on the same day.
The MARGOLIYOS HA'YAM quotes a source that asks a different question on Tosfos' second answer. As long as the witnesses (when found to be Edim Zomemim) can claim that they came not to kill the man but only to inflict a more painful death, they should not be punished with death regardless of whether or not the testimony of the first witnesses is overturned (see Insights to Sanhedrin 9:2)! He answers that it must be that the second group of witnesses did not know that the defendant was already condemned to death. Therefore, they cannot claim that they came only to give a more painful death, as they did not know that he was supposed to die in the first place. (However, it does not seem from the wording of Tosfos that this is his intent.) (Y. MONTROSE)
2) THE SOURCE FOR UNUSUAL PUNISHMENTS
OPINIONS: The Mishnah describes unusual forms of punishment for various types of transgressions. For example, if a person repeatedly commits sins which are punishable with lashes, he eventually may be punished by being placed in a "Kipah," a small confining structure, in which he is fed barley until his stomach ruptures. A similar punishment is given to a person who killed intentionally but there is no proper testimony of witnesses. A person caught stealing a vessel used in the Beis ha'Mikdash is liable to "Kana'in Pog'in Bo" -- if a zealous, righteous person catches him, he may kill him. These forms of punishment are not mentioned in the Torah. What is the source for these punishments?
(a) The RAN suggests that these laws were given to Moshe Rabeinu at Har Sinai (as a Halachah l'Moshe mi'Sinai). He proves this from the Gemara later which states that Pinchas asked Moshe Rabeinu, "Did you not teach us when you came down from Har Sinai that a person may strike such a sinner (i.e. one who is having relations with a Nochri woman)?" Moreover, the Gemara asks with regard to the punishment given to a repeat sinner, and the punishment given to one who steals a vessel from the Beis ha'Mikdash, where these laws are alluded to in the Torah ("Heicha Remiza?"). If these were merely punishments mid'Rabanan, the Gemara would not ask for the allusion in the Torah for these laws. RASHI apparently agrees with this proof, since he comments (DH k'Vala Es ha'Kodesh) that the Gemara is merely seeking a slight hint to the law, as the law itself was given to Moshe Rabeinu at Sinai.
The Ran explains that the Gemara does not ask this question with regard to someone who kills intentionally without witnesses, simply because it already understands the source for this law. The verse states, "And the land will not have atonement for the blood that was spilled upon it, except with the blood of the murderer" (Bamidbar 33:35). It is obvious, therefore, that Beis Din must see to it that a killer does not live, even if -- due to a technicality -- Beis Din cannot actively execute him.
The Ran questions his explanation from the Gemara later (82b). The Gemara asks whether it is possible to find a case in which Beis Din kills a person whom the Torah says is free of punishment. The Gemara answers that this is the type of case in all of the aforementioned Mishnayos, which discuss placing a person in a Kipah, and "Kana'in Pog'in Bo." If these punishments were taught at Sinai as the Ran suggested, then why does the Gemara imply that they are not Torah law?
The Ran quotes an opinion which answers that the Gemara is asking a different question. The Gemara is asking whether there exists a case in which a Beis Din would find a person innocent, and yet the people may preemptively punish him outside of Beis Din. This does not mean that the preemptive punishments are not mid'Oraisa. Accordingly, there is no contradiction from the cases of the Mishnah to the question of the Gemara.
The Ran himself gives a different answer to his question. He explains that the Gemara is asking how there can be a case in which Beis Din kills someone based on Torah law if there is no hint to that law in the Torah. When the Gemara then asks about each particular case in the Mishnayos, it answers that each case is either hinted to in the Torah or has a logical, Torah-based reason behind it.
(b) The YAD RAMAH suggests that these laws are mid'Rabanan. This also seems to be the view of the RIVASH (#251) who discusses these laws as forms of a stringency that the Chachamim established. The MARGOLIYOS HA'YAM cites proof to this assertion from the Gemara in Kesuvos (33b), which deals with jailing an assailant while the victim is in critical condition, until the victim either recovers or dies. The Gemara inquires about the circumstances of the case: if the assailant was not warned with Hasra'ah, then why does Beis Din incarcerate him in order to kill him if his victim dies?
What is the Gemara's question there? If the law of Kipah of the Mishnah here is mid'Oraisa, then it is obvious why Beis Din puts the assailant in jail even though there was no Hasra'ah; if his victim dies, then Beis Din will need to put him into a Kipah as his punishment! It must be that the Gemara there understands that the law of Kipah is mid'Rabanan, and that is why it asks how Beis Din can jail a person who did not receive Hasra'ah, since, mid'Oraisa, there is no punishment that can be given to him.
The ARUCH LA'NER says that the Gemara itself entertains the possibility that these laws are mid'Rabanan. The Gemara asks, "Just because a person sinned and was deserving of lashes multiple times, must he be put to death?" If the Gemara at this stage knows that this law is a Halachah l'Moshe mi'Sinai, then it would have no question (as the Gemara never questions any other punishment mentioned in the Torah). However, once the Gemara answers and shows how this law is hinted to in the Torah, it might maintain that these laws indeed are Torah punishments (as Rashi and the Ran explain). (Y. MONTROSE)