Midrash for Sanhedrin 68:21

דיני נפשות דנין ביום וכו': מנהני מילי אמר רב שימי בר חייא אמר קרא (במדבר כה, ד) והוקע אותם לה' נגד השמש א"ר חסדא מניין להוקעה שהיא תלייה דכתיב (שמואל ב כא, ו) והוקענום לה' בגבעת שאול בחיר ה'

or alternatively, because this Mishnah is taught in the tractate relating to legal procedure.<span class="x" onmousemove="('comment',' Whereas the other anonymous Mishnah is cited only incidentally in a tractate relating to a different subject entirely, and it stands to reason that greater care would be taken in the former to teach what is actually the halachah. ');">³⁹</span> But how does R. Meir<span class="x" onmousemove="('comment',' Who holds that disputes may only be tried by day. ');">⁴⁰</span> interpret the verse, And let them judge the people at all times? — Raba answered: As including even a cloudy day.<span class="x" onmousemove="('comment',' On which, unlike the cases of leprosies, civil suits may be tried. ');">⁴¹</span> For we learnt:<span class="x" onmousemove="('comment',' Neg. II, 2. ');">⁴²</span> Leprosies may not be examined in the morning, in twilight, in the house, or on a cloudy day, for [then] a dull [spot] might appear bright,<span class="x" onmousemove="('comment',' So that it might wrongfully be declared unclean. Cf. Lev. XIII, 2ff. ');">⁴³</span> at mid-day,<span class="x" onmousemove="('comment',' When the sun is brightest. ');">⁴⁴</span> for a bright [spot] might then appear dull.<span class="x" onmousemove="('comment',' So that it might wrongfully be declared clean, Neg. II, 2. ');">⁴⁵</span> Now [again], according to R. Meir, what is the purpose of, And in the day that he causeth his sons to inherit?<span class="x" onmousemove="('comment',' Since R. Meir deduces the law that civil suits must be tried by day from the case of the examination of leprosies, the reference to 'day' here appears superfluous. ');">⁴⁶</span> — He utilises it, even as Rabbah b. Hanina recited before R. Nahman: And in the day he causeth his sons to inherit: only by day mayest thou assign estates, but not by night. Whereupon the other retorted:<span class="x" onmousemove="('comment',' In B.B. 113b, this question is attributed to Abaye. ');">⁴⁷</span> If so, if one dies by day, his sons inherit, but should he die at night, they do not inherit! Perhaps you refer to the legal procedure in bequests.<span class="x" onmousemove="('comment',' If made by day, a bequest has judicial authority, and does not need court authentication; by night, those who witnessed it are required to legalise it before court. (Rashi.) The Rashbam in B.B. 113b translates: 'Perhaps you refer to lawsuits concerning legacies,' i.e., that these, like any other civil suits, must take place by day. ');">⁴⁸</span> For it has been taught: And it shall be unto the children of Israel a statue of judgment:<span class="x" onmousemove="('comment',' Num. XXVII, 11, at the conclusion of the section dealing with laws of inheritance. ');">⁴⁹</span> that invests the whole chapter with the force of judicial proceedings.<span class="x" onmousemove="('comment',' I.e., when a bequest is made, those who are present become ipso facto a Beth din, even against the wish of the testator's natural heirs. This is the explanation given by Tosaf. in B.B. 113b, which adds that the reference is not particularly to a bequest made on one's deathbed, but even to one made in full health, save that it must be accompanied by a formal kinyan (q.v.). Rashi's interpretation here is on the same lines, but he appears to refer it to a sickbed bequest. ');">⁵⁰</span> Thus [your dictum] will agree with that which Rab Judah said in Rab's name, viz.: If three [persons] come to visit a sick man,<span class="x" onmousemove="('comment',' And hear him assign his estate to his heirs. ');">⁵¹</span> they may, according to their desire, either record [his bequest],<span class="x" onmousemove="('comment',' Merely as witnesses. That document is afterwards produced by the heirs in court and there given its necessary authority. ');">⁵²</span> or render a judicial ruling.<span class="x" onmousemove="('comment',' Since they are three they can constitute themselves into a court and have legal authority to execute the Will. ');">⁵³</span> In case of two, however, they may write it down,<span class="x" onmousemove="('comment',' In the form of a witnessed document. ');">⁵⁴</span> but not render a judicial ruling.<span class="x" onmousemove="('comment',' Since two do not make a properly constituted Court. ');">⁵⁵</span> Whereon R. Hisda said: This<span class="x" onmousemove="('comment',' Ruling with reference to three. ');">⁵⁶</span> holds good by day; at night, however, they may indite the bequest, but not render a judicial ruling, since they are witnesses, and a witness cannot act as judge.<span class="x" onmousemove="('comment',' I.e., when they hear a bequest at night, they can obviously do so only as witnesses, since a court cannot function at night, consequently, they cannot subsequently constitute themselves a court, for they already have the status of witnesses. ');">⁵⁷</span> — He [Rabbah b. Hanina] answered: Yes, I meant it so. BUT CAPITAL CHARGES MUST BE TRIED BY DAY [AND CONCLUDED BY DAY]. Whence is this deduced? — R. Shimi b. Hiyya said: Scripture states, And hang [we — hoka'] them up unto the Lord in face of the sun.<span class="x" onmousemove="('comment',' [H], Num. XXV, 4; i.e., in the day time. ');">⁵⁸</span> Whence do we know that hoka'ah means hanging? — From the verse, And we will hang them up [we — hoka'anum] into the Lord in Gibeah of Saul, the chosen of the Lord.<span class="x" onmousemove="('comment',' [H] II Sam. XXI, 6. ');">⁵⁹</span>

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