How was the Mekoshesh, the man found gathering wood on Shabbat in Sh'lach L'cha, given the death penalty if the punishment wasn't known yet, so he couldn't have been warned, being that the warning must contain the exact punishment for that act?
Answer
Rashi and Rav Hirsch explain that Hashem had already commanded that he was subject to the death penalty, but they did not yet know the precise manner of the punishment.
They put him under guard, since it was not specified what was to be done to him.
Rashi
since it was not specified what was to be done to him: With which method he should be executed. But they did know that one who desecrates the Sabbath is put to death. — [Sifrei Shelach 57]
Rav Hirsch explains that
But here: כי לא פרש מה יעשה לו, that it was a capital crime punishable by death was in no doubt, מחלליה מות יומת (Exodus XXXI,14) had already been proclaimed, the only doubt was מה יעשה לו, which form of death was to be administered. יודע היה משה רבינו שהמקושש במיתה שנאמר מחלליה םות יומת אלא לא היה יודע באיזה מיתה נהרג (Sanhedrin 78b). Nevertheless, the התראה was legally sufficient, for all that is required is שהתרו בו סתם that he is told that what he does is a capital crime (Ibid 80b). But in the opinion of רב יהודה any התראה is incomplete if the actual form of the death to which he is liable is not specified to the criminal, then the killing of the מקושש was a special case, an הוראת שעה dictated directly by Hashem and cannot be used as an example for the general practice.
הוַיֹּ֤אמֶר יְהֹוָה֙ אֶל־משֶׁ֔ה מ֥וֹת יוּמַ֖ת הָאִ֑ישׁ רָג֨וֹם אֹת֤וֹ בָֽאֲבָנִים֙ כָּל־הָ֣עֵדָ֔ה מִח֖וּץ לַמַּֽחֲנֶֽה
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