Commentaire sur Le Lévitique 24:12

ויניחהו AND THEY PLACED HIM [IN WARD] — him by himself — and they did not place the man who gathered sticks on the Sabbath day with him (Numbers 15:34), because both of whom happened to be (i. e. to commit an offense) at the same period, but they knew that the stick-gatherer was to be punished with the death-penalty, only it had not been explained to them by what kind of death he was to be punished — it is for this reason that it is stated in his case (Numbers 15:33) “[and they placed him in ward] because it was not explained what should be done to him”. In the case of the blasphemer, however, it states “[and they placed him in ward] that [the proper penalty] might be shown to them”; this was because they did not know whether he is at all liable to the death-penalty or not (Sifra, Emor, Section 14 5; Sanhedrin 78b).

By himself.. [Afterwards Rashi] explains [that he was imprisoned by himself] because the woodgatherer was more wicked, since everyone knew that he was liable for the death penalty, whereas the blasphemer was less wicked, for they did not know whether or not he was liable for the death penalty. Therefore they were not imprisoned together. As the Gemara says that there were two cemeteries, one for those whom [Beis Din] stoned, and one for those whom they burnt [because stoning is punishment for a more serious sin]. Similarly, we do not imprison someone who is [considered] more wicked together with someone who is [considered] less wicked. (Nachalas Yaakov)

'לפרוש להם עלפי ה, “until instructions (how to deal with him) would be revealed by G–d.” It was clear that this man was guilty of the death penalty, seeing that cursing the Lord is one of the seven basic commandments already revealed to mankind long before the Torah was given. What was not clear was if, seeing that his mother was Jewish, he should be stoned to death (according to Jewish law) or if he should be put to death by the sword, the type of death penalty applicable to gentiles who are guilty of such a penalty. Some scholars, aware that when the penalty described by Jewish law is applied the person executed obtains atonement, felt that this person should be denied the opportunity of atonement after death, so that they wanted to kill him by a different method. An example of such a procedure is found in Leviticus 20,2, where a parent who kills one of his or her children by burning them as a sacrifice to the idol molech is executed by stoning, whereas if he did so to all of his children no penalty is spelled out. The Rabbis, perplexed why such a parent should not be punished, explained that the fact that no penalty is spelled out means that the parent guilty of this will be killed by a method which does not bring atonement for his sin in its wake. (Talmud, tractate Sanhedrin, folio 64). This is why the Torah here had to write that Moses had to make enquiries from G–d concerning this. Something similar occurred with the man who collected kindling on the Sabbath, Numbers 15,32. The Torah had already spelled out the death penalty, but without specifying which of the possible four kinds of death penalties applied. This is why the man was first put in jail until the death penalty by stoning was decreed. Normally, when no further details are spelled out in the Torah the death penalty is by asphyxiation, חנק. The difficulty both here and in Numbers 15,32, is that according to Jewish law the guilty party must not only be warned about the impending penalty, but according to Rabbi Yehudah in the Talmud tractate Sanhedrin folio 8, must be warned about which kind of death penalty he would be facing, something that was impossible in both the examples we have cited. It is possible that he was given a warning that he would face one of four kinds of death penalties. Perhaps each one of them used this as an excuse by reasoning that such a warning was not legally valid and they would get away with their sin. There is also the problem that some of our sages feel that any warning which was based on some dubious language is invalid. (Talmud tractate Pessachim folio 63) It is hardly likely that under such circumstances there could be any convictions ever, as to find witnesses who had warned concerning 4 possible type of death penalties would presuppose that witnesses to a capital offence are all learned men. There is also an opinion in the Talmud that if a person who was considered a chaver, known for meticulous observance of the Torah’s commandments, committed a serious sin, the fact that he had not been warned of the consequences is ignored, as he did not need witnesses to warn him not to do what he knew was forbidden and which penalty would await him (Sanhedrin folio 8)