Caution or warning given to those who are about to commit a crime. The Rabbis consider the fact that not all men are lawyers (comp. "Yad Malaki," Din 24), and therefore many sin through ignorance or error. To prove guilty intention, which alone can render one amenable to the full penalty for his crime, the Rabbis provide that, prior to the perpetration of a crime, the one who is about to perpetrate it must have been cautioned of the gravity of his project (Sanh. v. 1, 8b; Mak. 6b). This proviso they try to deduce (probably only in the way of "support") from certain peculiar expressions and phrases used by Scripture in connection with various crimes and their punishments (Sanh. 40b).
The caution has to be administered immediately before the commission of the crime (Sanh. 40b; Maimonides, "Yad," Sanhedrin, xii. 2), and, according to the better opinion of the legists, alike to the scholar and to the layman, since by this caution alone may the court be enabled to distinguish between error and presumption (Sanh. 8b; "Yad," l.c. xiv. 4). The caution must name the particular punishment which the commission of the contemplated misdemeanor entails—whether corporal or capital. If the latter, the particular mode of death (see Capital Punishment) has to be mentioned, or the legal penalty attached to the crime can not be imposed (Sanh. 8b; Mak. 16a).Diverse Operations of the Caution.
Besides establishing guilty intention on the part of the culprit, this proviso operates in diverse directions. (a) It serves the court as a guide in passing sentence on one convicted of aggravated or continuous misdemeanor. For instance: A Nazarite (Num. vi. 2-4; Naz. i. 2, 3b) subjects himself to the penalty of flagellation if he violates his vow of abstemiousness by drinking a certain measure (¼ log) of wine (Naz. vi. 1, 34b; "Yad," Nezirot, v. 2). In case he is guilty of drinking several such measures in succession, how is he to be punished? The preliminary caution decides. If it is legally proved that due warning had been administered to him before each drink, he is punishable for each drink separately; otherwise, if he was forewarned once only, he is punishable for one violation only (Naz. vi. 4, 42b; Mak. iii. 7).Between Two Deaths.
(b) In passing sentence on one convicted of an offense entailing both corporal and capital punishment, the preliminary caution serves the court as an index to the penalty to be imposed. For example: The Bible (Lev. xxii. 28) forbids the killing of a cow or a ewe "and her young both in one day"; and rabbinic law imposes the penalty of flagellation on the violator of this prohibition (Ḥul. v. 3, 78a, 82a). Another law imposes the penalty of death on the Jewish idolater (Deut. xvii. 5; Sanh. vii. 4). When both of these transgressions are committed simultaneously, as when one slaughters an animal and its young in one day as an offering to an idol, the question is, Which penalty does he incur? Both he may not receive; for rabbinic law prohibits the administration of more than one punishment for any one offense (Mak. 13b). Which, then, should the court impose here? Again the warning decides. If it is proved that the culprit was warned of the death-penalty, a sentence of death will be awarded; if flagellation only was mentioned in the warning, flagellation will be administered (Ḥul. 81b). (c) Where a convict incurs two capital punishments, the one mentioned in the warning is administered. For instance: The law punishes the crime of adultery with death by strangulation (Lev. xx. 10; Sanh. xi. 1; see Capital Punishment), and that of criminal conversation with one's own mother-in-law with death by burning (Lev. xviii. 17; Sanh. ix. 1; See Capital Punishment). If one is charged with having had criminal conversation with a married woman, and that woman is his mother-in-law, the penalty will depend upon the import of the antecedent caution. Where he was forewarned that the consummation of his project will be adultery, entailing the penalty of strangulation, he will be strangled; but where the warning stated that the crime would amount to that species of incest entailing burning, the more severe death will be awarded (Sanh. ix. 4, 81a; Yeb. 32a).
From the benefit of this proviso rabbinic law excludes the false witness (Deut. xix. 19; Mak. 4b) and the instigator to idolatry (Deut. xiii. 2-10; Sanh. vii. 10, 67a): the first because the nature of the crime does not admit of forewarning (Ket. 33a); and the latter because of the heinousness of the crime in a theocratic commonwealth (see Abetment). The burglar is also excluded from its operation (see Homicide), his crime of breaking in being his warning (Ket. 34b; Sanh. 72b). So are all those excluded who are guilty of misdeeds for the commission of which the Mosaic law prescribes the penalty of excision (; Mak. 13b).
- Benny, Criminal Code, p. 97;
- Fassel, Strafgesetz, § 1, Mayer, Rechte der Israeliten, iii. 77;
- Mendelsohn, Criminal Jurisprudence of the Ancient Hebrews, §§ 16-19, note 68;
- Pineles, Darkah shel Torah, § 115;
- Rabbinowicz, Einleitung in der Gesetzgebung, p. 4;
- Saalschütz, Das Mosaische Recht, note 560.