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JEWISH ENCYCLOPEDIA

ACauiTTAL IN TALMTTDIC LAW: Ji-wi^li

couit

I'nr

licariiii.'

c.iiiil:!!

The

was comjud^'cs. ami ac-

cilliiisi-s

posed of tuciuy-tlirci-

Composi- corilinir to the opinion of many sages, tion of Jew- even olfenses of a lower defrree, sueh ish Court, as were punishable must be tried by a

l)y stripes only,

like number of judges. Still it must not be tliousrht that lh<' Jewish court corresponded in any way to an Enfilish Modern jurors are supposed to or American jury. render a verdict upon the fails adiluced l)y Ihe eviharisaic idea, versed in the law. it was requisite that they be "disciples of the wise," that is, learned in the trailitions. Ii was not sonuicli their business to weigh conllicling evidence as to decide upon the couipetency and the sulliciency of the testiniciiiy given by the witnesses according to certain hard and last rides. Hut it was deemeil the highest duty of the judges to see that no imiocent man be condemned; in fact, that no one should be convicted wlio was not guilty both morally and legally, and whose guilt was not established in a strictly legal way and for this imrpose they were to carry on a most searching cro.ss examination of the

liroseculing wilnes.ses.

The Talmud speaks in the main of Acipiiltal from lack of sulticieni evidence. As there must be two eyewitnesses to a criminal act in order to convict, or two ear-witnessesin the few eases in which Agreethe otTense consists of spioken words

ment

of

Witnesses.

(for example, incitement to idol ship), if one of the two. having

worbeen

examined separately, breaks down, or if ihe two contradict each oilier in any material point, an Aci|uillal must follow. Ilereadifference comes in bi'tween the failure to answer under the general crossijuestioning on the lime and place of a criminal act, which is know II as hnkinili (searching), and the free and rambling cross-examination known as IihUkii/i. As to the former, the answer " I don't know " by <-ither of Ihe witnesses destroys Ihe teslimony of both for sueh an answer makes it impossible eventu:

ally to fulfil the Sciiptural law as to " plotting witnesses" (see Ai.ini) by proving that the witnesses

were, at Ihe exact time named by them, at other l)laces. Hut cither w itnessor both witnesses may fail loanswer sonieof the (piestions put to them relative to surrounding circumstances, without destroying llicilTect of their testimoTiy. Of course, if two witnesses answer concerning Ihecirciimslancesof an offense in suih a way lliat ime plainly contradicts the other, the Icslimony of linth falls to llu' ground; whereof Ihe best known example is given ill he story of Sn.sjinnah. told in Ihe Apocryi)lial additions to the Hook of Daniel. Hut within certain limits contradictions, even as to time and place, are not fatal. Thus, considering the uncertainly of the lunarcalenilar, one witness might place the crime on the second day of tile monlli, the olhir on the third; bicause oiii' might know whether the piei-eding nionlli bad twellly nincdaysor lliirly days, w hilc the other w itiiess did not. However, if upon cross I'xaminiit ion it should a])pear that both knew the right lime of tile new moon, and lliat they iiicant diltercnt days, I

coiitradiclory, and fails in elTecl. If Ihiy dilTerby I wo days— say the I bird and the llflli the iliscrepancy can not be reconciled, and there must be an Acipiiltal. As to the hour « hen the deed was ilmie. a diirerencc of one hour is their testiiniiiiy is really

—

immalerial



when the w ilnessi'S ililTer by two hours, naming an liour in the forenoon, or

both, however,

Acosta, Uriel Acquittal

both an hour in the afternoon, the oldest authorities (1{. Meirand U Jiidaln are divided in opinion, and most of the modern coditiers hold with the latter Siige, that a diirerencc of even two hours might be charged toan innocent mistake on the part of one or both. Hut if one says at the fifth hour, and the other sjiys at the .seventh hour (from dawn), the variance is fatal; for forenoon and afternoon are easily distinguished by the position of the sun in the; east or in the west " If the judges find a iioint in favor of (8anh. v. 3). the accused, they acipiit him immediately" (Sanli. v.o); while, if there is an inclination to convict, there must be an adjournment to the next day. In the discussions before Ihe final session, those who have once declared for Acquittal must not argue on the side of conviction, but they may vote for it, if brought overtoil by the arguments of the other side. Such at least is the underslaiiiling expressed by Maimonides and by l)adiali de Hertinoro in their commentaries on the Mishiiah. Unanimity of the judges was not required either to convict or to acquit. Hut the majority of one for Acquittal was deemeil sullicieiit by ail, while if the majority among the judges for conMajority viction was no greater than one, new Necessary judges had to be added to Ihe court for a until a result was reached; eitheraconDecision. viction by a greater majority than one or an Acqiiillal. In the highly improbable event of the court havin.sr come to no decision after being incria.sed to its utmost limit, that is seventy-one, or for the rare cases triable before the great Sanhedrin (also of seventy one judges), it was provided that u))on a division of thirty -six for conviction and thirty-five for Acquittal, the judges should discuss the matter in secret session until one was brought over to the side of the defense (Sanh. v. .')). There is no doubt, however, that until juiigmc'it was rendered, any one of the judges was free to change his mind either way. If less than twentythree judges gave an ojiinion one way or the other, that is, if one or more of the bench of judges sjtid that they did not know which way to decide, it was the sjime as if the full number of twentythne had not been emiianeled. and there could not be an Acquittal any more than a conviction. New judges had to be added to the bench, two by two, till there were twenty three ready to give their opinion one way or the other. An Acquittal once i)ronounced was irrevocable; the judgAcquit- ment could never be reopened, nor the tal trial resumed, though the clearest Final. evidences of guilt might thereafter come to light, or though the court had erred most grievously in applying the law. The principle that "no one must be twice put in jeopardy of life and limb," so highly valued in Knglish law. anil which is imbedded, as a part of the Hill of Rights, in every American Constitution, was derived from the words of the Scripture (Ex. xxiii. 7): ".Vnd the innocent and righteous slay thou not: for I will not justify the wicked." The principle is expressed in the Mishnah (Sanh. iv. 1) thus; rflb |'TfnO, "in ca.ses iuMilving property, they turn back' (that is, go to a new trbil) as iiiiich to acquit the accused as to condemn him; in capital ca.ses (or criminal cases in geiiend). however, they turn back,' only to acquit, but not to condemn." A new poini calculated to bring about .cquittal may be adduced even while the convicted man is on the way to execution. Taking into account that all eirciinistantinl evidence of guilt anil also the testimony of women, of slaves, and of Uentiles were e.xcludeti; considering

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