והוצאתם את שניהם אל שער העיר ההוא וסקלתם אתם באבנים ומתו ... ובערת הרע מקרבך (כב-כד)
The Rambam writes, “It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death.” Executing a defendant on anything less than absolute certainty would lead to a slippery slope of decreasing burdens of proof, until convictions would be merely “according to the judge’s discretion.”
An interesting story is found in Sefer L’maan Yishmau (on Sefer Ben Ish Chai). In the year 5656 (1896), a wealthy businessman in the capital city of Bagdad decided to celebrate his great success by throwing a grand feast on Motzei Shabbat. To enliven the party, he invited Nissim the comedian, a well-known figure, who used humor to mock others publicly. He was humorous, but always at the expense of other people’s shame and humiliation. That night at the party, standing on a table set up to be a stage and sipping from a cupful of strong drink, Nissim made all sorts of bold gestures while he drew from his repertoire of cruel jokes and witty insults, filling the hall with noisy laughter.
During his performance, a waiter happened by holding a tray of fish in his hands. The performer took a plate and stuffed the fish into his mouth while continuing to amuse the crowd with his crude repertoire. Suddenly, a large bone from the fish got stuck in his throat. He began to choke and motion that he required assistance. Many thought it was part of his routine, while the others, not knowing precisely how to assist him, helplessly watched as Nissim turned blue and then fell to the floor, lifeless. Horrified, the wealthy host screamed in panic, for he feared he would be blamed for the comedian’s death!
One of the onlookers suggested they place Nissim upstairs, in front of Saadia the Doctor’s door. Maybe when he emerged from his room and saw the lifeless body, he could do something. A group of volunteers from among the many stunned guests carried the dead comedian to the upper floor, knocked on the doctor’s door and hurried away so as not to be seen.
Saadia, hearing the knock, came to the door, but because it was dark in the hallway, he did not notice a man lying on the floor by his door and tripped over Nissim’s feet, causing them both to roll down the steps, one over the other. Recovering from the fall, he looked at the other fellow and gasped; by tripping over this man and making him fall, he surely must have killed him! Not wanting to be punished for murder though, he stood the body against a nearby wall outside and left.
Ezra the tailor, still busy working at this late hour, suddenly noticed a man sitting on the ground, looking into his window and was overcome with fear; perhaps a thief was trying to break in? He ordered the man to leave immediately, but when there was no response, he took a hot iron burning on his stove and threw it through the window, hitting the dead Nissim in the face and knocking him down again. Seeing the body collapse, Ezra was mortified, thinking that he had killed a man! Not wanting to be caught, he dragged the body into the street and stood him up against a tree.
Soon after, a drunkard passed by and thought this man was laughing at him, so he took a bottle of whiskey and hit Nissim over the head, causing the dead body to once again fall to the ground. At that moment, a police officer was walking by, and seeing what the drunkard had done, arrested him. The news spread around town that in two days time, the drunkard would be hung for having killed Nissim the comedian. Feeling guilty, the rich businessman, the doctor and the tailor, each on their own, went separately to the police to admit that in truth, it was they who had caused Nissim’s death.
The judge was unsure how to pass judgment. Never had he encountered such a strange situation, that four people should admit to killing one man! He decided to seek the advice of the great Jewish Sage, Chacham Rabbi Yosef Chaim zt”l of Bagdad, the Ben Ish Chai. The day of the court case arrived and many gathered to see how this episode would be resolved. The judge proclaimed his verdict: “All four men are free from punishment! My decision is according to the wisdom of the great Jewish rabbi.” The judge went on to explain what he had learned. “Nissim the comedian caused his own death through his public mockery, and received punishment corresponding to all four forms of Jewish execution - stoning, burning, slaying, strangulation - that Jews could have been sentenced to during the time of their Holy Temple!”
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