Here we’ll talk about a situation where the death penalty applies to somebody for two different penalties. Which penalty does he get? The Mishnah says that if somebody committed two different averot (crimes), and therefore is obligated to be put to death by the beit din (rabbinical court) in two different ways, the question becomes: which way do we put him to death? We say he is punished with the stronger, harsher way of dying.
For example, let’s say somebody had inappropriate relations with a married woman, for which he was supposed to receive the punishment of strangulation. But before he was killed by strangulation, he committed avodah zarah, he worshipped an idol, and that brings on the death penalty of stoning. The penalty of dying by stoning is worse than dying by strangulation. So the question becomes: which one does he get? On the one hand, you could think he was already sentenced to strangulation by the beit din, so nothing could trump that. Nothing could go higher than that. But on the other hand, you could say that once that second crime also came into play, he deserves the harsher punishment. So that would override the first sentencing he got of strangulation, and that’s what we say. He’s nidon ba-chamurah, he’s put to death with the harsher penalty for worshipping avodah zarah, and he gets stoning, not strangulation, which is the punishment for inappropriate relations with a married woman. Because stoning is harsher than strangulation, he gets stoning. So that was for two different actions.
The next part of the Mishnah is going to talk about what if he did one action that has two different averot connected to it, two different issurim (prohibitions), both carrying the death penalty but with two different death penalties. Let’s say somebody committed an averah that brings on two different death penalties. For example, he had an inappropriate relationship with his mother-in-law, and his mother-in-law was married at that time. So the two punishments he should get are: on the one hand, he had relations with his mother-in-law. That punishment is sereifah, burning. He also had relations with an eshet ish, with a woman who was already married. The punishment for that is strangulation. So we say likewise over here: it was only one action, but nidon ba-chamurah, he’s punished with the harsher of the two punishments, which is death by burning, as opposed to death by strangulation, which is not as chamur, not as harsh as death by burning.
That is the opinion of Tanna Kama (first Tanna). Rebbe Yosei is going to disagree. Rebbe Yosei says the person is punished with the first penalty of the first prohibition that applied to him. In other words, which prohibition, which averah, came into existence first? Which status came in first? That is the sentence he carries. For example, let’s say his mother-in-law was already married at the time that he married her daughter. So the mother-in-law was already prohibited to the man as an eshet ish, a married woman. The second averah, of her being his mother-in-law, came into existence later. Therefore, according to Rebbe Yosei, he would be punished for having relations with a married woman, because that status came into the world first, even though it is considered the lighter of the two ways of getting the death penalty. We look at this woman not as the mother-in-law, but as a married woman, and therefore the death penalty would be strangulation, even though it is lighter than the death penalty of sereifah, burning, for a man having relations with his mother-in-law.
On the other hand, let’s say his mother-in-law was single when he married his wife. His mother-in-law was divorced, for example. So he married his wife, and now his mother-in-law is not an eshet ish. She’s not considered to be a married woman, but she’s prohibited to him; she’s asurah to him anyway, because now she’s his mother-in-law. So that status has been established. Now let’s say she gets married to another man. She’s now considered to be an eshet ish, but that status came into existence at a later point in time. Therefore, if he had relations with her, he would be having relations with his mother-in-law. That status came into existence first, and therefore he would be punished with sereifah, as opposed to looking at the woman as an eshet ish, as another man’s wife, which would carry the punishment of strangulation. So we look at her according to her earlier status, whatever that earlier status was, and match that up with him, and put him to death in that way. So in that last example we brought, it would be sereifah, because we look at her as his mother-in-law.