Bible Encyclopedias
Hatra'ah

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 (Numbers 6:2-4 Naz. 1:2,3 b) subjects himself to the penalty of flagellation if he violates his vow of abstemiousness by drinking a certain measure (¼ log) of wine (Naz. 6:1,34b "Yad," Nezirot, 5:2). 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. 6:4,42b Mak. 3:7).

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 (Leviticus 22:28 ) 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. 5:3,78a, 82a). Another law imposes the penalty of death on the Jewish idolater (Deuteronomy 17:5 Sanh. 7:4 ). 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 (Leviticus 20:10 Sanh. 11:1 see Capital Punishment ), and that of criminal conversation with one's own mother-in-law with death by burning (Leviticus 18:17 Sanh. 9:1 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. 9:4,81a Yeb. 32a).

From the benefit of this proviso rabbinic law excludes the false witness (Deuteronomy 19:19 Mak. 4b) and the instigator to idolatry ( Deuteronomy 13:2-10 Sanh. 7:10,67 a): 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).