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Does killing a gentile unintentionally absolve you from the crime? (Makkot 7b)

"(דברים יט, ד) בבלי דעת פרט למתכוין מתכוין פשיטא בר קטלא הוא אמר רבה פרט למתכוין להרוג את הבהמה והרג את האדם לכותי והרג את ישראל לנפל והרג בן קיימא

The baraita states: “Unawares”; to exclude from exile the one who kills with intent. The Gemara asks: "With intent? It is obvious that he is not exiled; he is subject to the death penalty." Rabba said: "The reference is to exclude the one who acted with the intent to kill an animal and he killed a person inadvertently, or one who acted with the intent to kill a gentile and he killed a Jew, or one who acted with the intent to kill a non-viable newborn and he killed a viable newborn."

Does that mean that such person will be absolved from the exile, and therefore face the death penalty? Or is that person altogether absolved from the crime?

Sorry for my layman Talmudic understanding.

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    They can be absolver from punishment without being absolved from crime. Not every crime in Judaism has statutory punishment. – Double AA Aug 24 '17 at 17:41
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No it does not refer to one who actually killed a gentile (whether intentionally or unintentionally). It means he had intent to kill a gentile but accidentally killed a Jew.

The point is that he intended to commit a crime, that was not subject to execution as a punishment, but inadvertently committed a capital offense. (see the other examples given). As a result, he cannot be executed for the crime that he actually committed even though he would have been subject to capital punishment had he intended to commit it.

Note that your translation is incorrect. Art Scroll Makos 7b1 cites the gemara as saying

לכוסי והרג ישראל

or who intended to kill a Cuthean 17 but instead killed an Israelite

note 17 says

Though it is forbidden to kill them, the Jewish courts could not execute a Jew for doing so.

  • I didn't really understand the language of the passage, does a person who intends to kill a Cuthean but ends up inadvertently killing a Jew face capital punishment? – RandomUser Aug 24 '17 at 20:28
  • @RandomUser No. it means that he is not subject to capital punishment because he did not originally intend to kill the jew. – sabbahillel Aug 24 '17 at 21:12
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The Rambam (Hilchos Rotzeach 6:10) says that he is not liable for going into exile to a city of refuge because exile is only for unintentional acts. Here is "close to deliberate". He had murderous intent, he just didn't do exactly what he intended to do, so the city of refuge does not protect him, rather he falls under the gap between unintentional manslaughter and murder.

Because capital punishment is full of technicalities that allow the accused to get off, he falls into a technicality. But for murder specifically there are extreme measures taken, and they could be taken in this case as well. (See there 2:4).

(Note that there is no distinction here, even if he intended to kill another Jew, it is the same law, it is just that this is "even a non-Jew or even an animal." So in fact it is saying that we don't say he had any less intent just because it was a non-Jew and do not apply any leniencies where we might say "oh, he never intended to kill that person because he wouldn't kill Jews, only non-Jews, so this was truely unintentional manslaughter". Rather intent to kill is sufficient to make it "close to purposeful" no matter where the intent was directed).

  • How do we know that this is an "even a non-Jew or even an animal" as opposed to "just a non-Jew and an animal"? How do we infer that? – RandomUser Aug 25 '17 at 9:39
  • @RandomUser, that discussion is in Sanhedrin 79a. – Yishai Aug 25 '17 at 13:06

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