This peculiar proviso seems to have been intended to serve three
distinct purposes: (1) To protect the would-be offender against his own
ignorance and rashness and to prevent the commission of crime by a
timely warning; (2) to aid in establishing guilty intention, that is,
criminal intent, at the trial of the prisoner, after the commission of
the offense; (3) to enable the judges to determine the exact penalty to
assess. The first two purposes are self-evident. The third merits a
brief consideration. To complete the warning, it was essential that the
offender be told the exact penalty attached to the crime which he was
about to commit; whether the punishment was capital or corporal, and the
exact kind, if capital; that is, whether beheading, burning, stoning, or
strangling. Now, it often happened that two crimes were committed by the
same person in one day; the penalty for one of which being flagellation
and the other death. And it sometimes happened that two different crimes
were the result of one criminal transaction. In such a case, the nature
of the Antecedent Warning would guide the judges in decreeing
punishment. To illustrate: The Mosaic Code forbids the killing of either
a cow or a ewe "and her young both in one day";[158] and a violation of
this prohibition, according to Rabbinic law, entails the punishment of
flagellation. Another Mosaic ordinance imposes the penalty of death on
the Jewish idolater.[159] Now, it might have happened that the last two
offenses mentioned were committed by the same person at the same time,
as when an Israelite slaughtered a ewe and her young and sacrificed them
as an offering to an idol. The question would at once arise: Which
penalty should be assessed, death for idolatry, or flagellation for
killing the ewe and her young both on the same day? Here, the nature of
the Warning would determine. If the prisoner had been told that
flagellation would be the punishment, then stripes were administered. If
he had been warned that death was the penalty, then capital punishment
was meted out to him. If the caution had included both death and
flagellation, then death would have been administered, because of the
enormity of the crime of idolatry and for the reason that all lesser
punishments are merged in death.
Public-domain text, read in full here on John Shaqi.
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