Below will be found Judge Herman's able review of the several points raised by the counsel for Mrs. Catharine Zell, on a petition for a new trial. As this case has elicited a wide-spread interest, we give below the decision of the court in full, together with the sentence of death pronounced on the prisoner. The scene in the court room was the most impressive ever witnessed. A woman sentenced to death! The judge, with great difficulty, controlled his feelings while sentencing the prisoner, and all present felt the solemnity of the sad occasion. The next resort will be the supreme court:
    By the Court: Forty seven reasons have been assigned by the prisoner's counsel in support of these motions, all of which may be grouped under five heads as those relating to: 1, The empanelling of the jury and their competency; 2, The conduct of the trial; 3, The charge of the court; 4, The conduct of the jury; 5, After discovered evidence. As thus presented they can be clearly and fairly considered. 1. In Jewell vs. The Commonwealth, 10 Harris, 94, it is held, that in an indictment for murder, an objectionable juror may, at the request of the district attorney, be directed to stand aside, and shall not again be called till the residue of the panel be exhausted, when the prosecuting officer may challenge such juror for cause. And this is in accordance with the common law upon the subject. When that case was decided, the commonwealth, in cases of felony, had no right of peremptory challenge, but could challenge for cause only. The Criminal Procedure act of 31 March, 1860, gave the commonwealth, in such cases, four peremptory challenges and to the prisoner, twenty, both continuing to have, as before, an indefinite number of challenges for cause, and since the passage of this act, the practice of standing aside jurors has been the same as it was before. Warren vs. The Commonwealth, 1 Wr., 45. See also, Hartzell vs. The Commonwealth, 4, Wr. 462. William McAllister, the first juror called was passed, without challenge, by the commonwealth's counsel, over to the prisoner, and the prisoner accepted him. He was then, at the request of the district attorney, ordered to stand aside, and was not again called until the whole panel had been gone through with, when he was challenged peremptorily by the commonwealth, and the challenge sustained against the objection of the prisoner's counsel. This, I think, was clearly right. It became manifest to the court that the commonwealth's counsel, from want of knowledge of the intimate friendly relations existing between this juror and the prisoner, had made a mistake, in the first instance, in passing him, and that no unfair advantage was intended. None of the jurors had as yet been sworn, and the commonwealth's peremptory challenges were not exhausted. The right of challenge peremptorily is as absolute as the right to challenge for cause, and I can discover no sensible reason for making any distinction in the manner of exercising either. I hold that the commonwealth as well as the accused may exercise their right of challenge at any time before the jurors are sworn. A fair and just administration of the criminal law will admit of no other safe rule.
    It is alleged that Henry W. Staup, one of the jurors on the regular panel, was not called, and that, therefore, the regular panel was not exhausted as it was announced to be by the clerk who called the jury, and that the order for the summoning and returning of talesmen was premature. The answer to this is, that the objection should have been made at the time or as soon as discovered, and comes too late after verdict. The prisoner took the chances of a verdict in her favor, and she could not at the same time reserve her objection, if she had any, as a ground for a new trial. The counsel for the prisoner admit that they learned of it during the progress of the trial, yet, not a word did the court hear of it until after the verdict was rendered and the reasons for a new trial were filed. If, in fact, it be true that this juror's name was not called, it is an irregularity that cannot now be taken advantage of. Having gone to trial without objecting and taken the chances of the verdict, the prisoner must be taken to have waived the irregularity. Jewell vs. The Commonwealth Supra. Staup affirms that he was not called, and if he was not, I am at a loss to understand how his name came to be omitted. The clerk, who called the jury, has, at my request, submitted to me a statement in writing, on this subject. After a careful investigation on the subject, I am fully convinced that the officers of the court acted honestly and fairly; that if the omission occurred, as alleged by the prisoner's counsel, and affirmed by Staup, it was unintentional, and no unfair advantage was taken of the prisoner. That the prisoner and her counsel attached no importance to it is evident from the fact that no mention was made of it until after the verdict was rendered, and not until the reasons for a new trial were filed.
    The objection to the form of the order for the summoning and returning of talesmen is wholly without foundation, and was not referred to on the argument by the prisoner's counsel.
    The examination of the jurors, as they were called, without being first sworn on their voire drie, was not objected to--not a word was said about it at the time by either side, and I am well convinced that no injustice was done to the prisoner in this respect. If the prisoner and her counsel did not acquiesce in it, why was the objection reserved until after the rendition of the verdict?
    As to the swearing of the jury, the law does not require that each juror shall be sworn as soon as he is chosen. I never knew it to have been done in this court, and I think it is much the better practice not to swear any until all have been chosen.
    It is alleged that John Doner, one of the jurors chosen and sworn in the case, was incompetent, by reason of being of unsound mind. The testimony taken in support of this allegation does not, in my judgment, establish that he was of unsound mind, nor that he was rendered incompetent from any other cause to act as a juror. I understood at the time that he was well known to the prisoner, and having accepted him, no complaint should now be made of him.
    2. The conduct of the trial. I think the record of the trial justifies the ruling of the court. I believed them to be sound at the time and I do not doubt their correctness now. I deem it wholly unnecessary to elaborate upon this class of reasons. The questions arising in the conduct of the trial were at the time discussed and carefully decided, and I can find nothing that was done of which the prisoner has any just cause of complaint.
    3. The charge of the court. I do not know how I could, consistently with a conscientious discharge of my duty, have given to the jury a fairer charge upon the law and the evidence than that given to them in this case. The law, as stated, is in accord with all our authorities upon the subject, and the review of the evidence is certainly fair to the prisoner as she or her counsel could have reasonably demanded. The definition of a reasonable doubt is the same as that given by Judge Agnew in the case of the Commonwealth vs. Drum reported in 8 P. F. Smith 22. The charge, I think, will fully vindicate itself and it will subserve no useful purpose to amplify further upon it. Suffice it to say that I am entirely satisfied with it, and am fully convinced that it did no injustice to the prisoner. Had I believed the prisoner to be innocent, or that the evidence did not justify her conviction, I would have gladly said so to the jury, and would have said so without hesitation, but I could not so believe.
    4. The conduct of the jury. It is alleged that whilst the jury were deliberating a threat was made by one of the jurors to report another juror to the court when he expressed a doubt as to the existence of poison in the substance examined by Mr. Horn; and also, that a verdict of guilty was secured by holding out inducements to some of the jurors that if convicted the jurors would sign a petition for a pardon. As to the first of these allegations, the deposition of Isaac Frymier, (a juror) is relied on. He deposes as follows: "I know of no promises that were held out of a pardon. Nothing more was said to me than when I said to Barnitz that I had my doubts that there was poison, he says I will report you to the court. He meant what he said I guess. That was before I agreed to a verdict." This is the "threat" complained of. It does not appear, nor is it even alleged, that this juror was in any way influenced or induced to agree to the verdict by reason of the remark made to him by Mr. Barnitz, that he would report him to the court. On the contrary Mr. Frymier says on cross-examination that Mr. Barnitz did not frighten him, and that he is not so easily frightened. In support of the second of these allegations--that a verdict of guilty was secured by holding out inducements to some of the jurors that, if convicted the jurors would sign a petition for a pardon. The deposition of John Doner (a juror) is produced and relied on. He deposes as follows: "I think maybe it was agreed that we should sign a paper for a pardon if we would find her guilty. I can't think of more than one, but I heard him saying that we should sign it: it was Peter Snyder." And on cross-examination--"It was not agreed by a majority of the jurors that we should sign a paper for a pardon. I can't name more than that one who spoke of it. There may have been more but I can't recollect them." And in answer to the question on cross examination, "state whether it was not after you had agreed on your verdict that you had the conversation about the pardon?" He says, "I think it was after. It was in the morning before we brought in the verdict." Here, again, it is not intimated or pretended by Mr. Doner that he or any one of the jurors was in any way induced to agree to the verdict by any promise or agreement to recommend a pardon, nor that such a consideration entered at all into their deliberations in considering and making up their verdict, and I cannot believe that it did. He says he thinks the conversation about a pardon was after they had agreed on their verdict, that it was in the morning before they brought in the verdict. It will be remembered that the jury were sent out about 3 o'clock on Tuesday afternoon, and returned with their verdict at 9 o'clock on Wednesday morning, after being out all night. The subject of a pardon does not appear to have been mentioned until after the verdict had been agreed upon. Mr. Frymier says he knows of no promises being held out of a pardon, and I can find nothing that would justify the inference that the verdict was brought about by any such consideration. It is very clear that the conduct of the jurors furnishes no grounds for disturbing their verdict.
    5. After Discovered Evidence:--The reasons filed under this head assign the after discovered testimony of Joseph Ebright, Mrs. Sarah Nickey and Emma Hoffmaster. The affidavit of Joseph Ebright and depositions of Mrs. Nickey and Emma Hoffmaster were produced and submitted on the argument. Joseph Ebright was a witness for the prisoner on the trial and was twice called to the witness stand by the prisoner's counsel and examined--the second time at considerable length. It appears that he boarded at Mrs. Zell's from March last on until, and after the death of Mrs. Kiehl. In his affidavit appended to the first series of reasons filed, he describes Mrs. Kiehl's appearance on the evening of her death, as he saw her, from about 7 o'clock until a little after 9 o'clock, when she died, and then says: "I went up to her and asked her how she was, when I came. She said she was poorly. I asked her if I should go for a doctor. She said 'No; Jesus is my doctor.' About twenty minutes after I asked her if I should go for a doctor, I heard Mrs. Zell say to her: 'We had better go for a doctor,' and she said, 'I don't want any doctor; Jesus is my doctor.'" He says, further, that she died quietly between 9 and 10 o'clock, and was able to speak for an hour or an hour and a half after he came there, he having come in to see her about 7 o'clock. Now it will be seen by an examination of the reporter's notes, that on the trial, Ebright was examined on this very subject, and then said that when he went in to see Mrs. Kiehl on the evening of her death, she could not talk any more and was dying, and that it was on the Monday or Tuesday previous to this that Mrs. Zell spoke of going or sending for the doctor. But little reliance can be placed in statements made in this wild way. And, can it be said that the prisoner did not know, at the time of the trial, that this witness could have described Mrs. Kiehl's symptoms and appearances on the evening of her death? When on the witness stand he told the court and jury in the hearing of herself and her counsel, and in their presence, that he had been at Mrs. Kiehl's bedside on that very evening from 7 o'clock up until the time of her death, and she certainly knew whether he had been there or not. If they did not know what he would say, they had simply to ask him. If they wanted a description of her symptoms and appearance, here was a witness--their own witness--at their hand, and they should have asked him to give that description. If a verdict is to be swept away on such after discovered evidence as this, but few verdicts will stand. The after discovered testimony of Mrs. Nickey and Emma Hoffmaster is to the effect that they saw Levi Barrick bring the wood to Mrs. Kiehl's house on Wednesday the 21st of May. It will be remembered that Levi Barrick is the witness who testified on the trial that he brought a load of wood to Mrs. Kiehl's house on the Wednesday (28th of May) preceding her death, and that Mrs. Zell was then at Mrs. Kiehl's house. Mrs. Nickey was a witness for the prisoner on the trial and was called to the witness stand and examined six times during the trial, and it is somewhat unaccountable that it was not known that she could testify as she now does in her deposition. Emma Hoffmaster was with her, she says, on the 21st day of May, when she saw Barrick bring the wood, and both say they saw him bring it on that day. Granting that due diligence was used by the prisoner and her counsel to produce this testimony on the trial, still, it would be merely cumulative of that of Mrs. Susan Hunter, Joseph Ebright, Catharine Biehls and Charlotte Fought, who testified on the trial, and this, in itself, would be a decided objection to it. Cumulative evidence, by which is meant additional evidence to support the same point, or when it is of the same character as evidence already produced, is not sufficient to induce the court to grant a new trial. Com. vs. Flanagan, T. W. & W. 423. But I have carefully examined the new testimony of Mrs. Nickey and Emma Hoffmaster, and that of Joseph Ebright and Amanda Wynkoop, submitted by the prisoner's counsel, in connection with the evidence produced on the trial, with the view of determining whether, if this new testimony had been introduced into the evidence on the trial it ought to have produced a different result, but I cannot believe that it would. So that waiving the question, whether it was known or not, or whether due diligence was used in discovering it, I am of the opinion that it is not probable that it would have produced a different result, and ought not to have done so. Granting new trials does not depend upon the whim or caprice of the judge, but upon well established and fundamental principles of law. In the trial of issues of fact, the court judges of the competency, the jury of the effect of testimony. But after the verdict, when the motion for a new trial is considered, the court must judge, not only of the competency, but of the effect of the evidence. If, with the newly discovered evidence before them, the jury ought not to come to the same conclusion, then a new trial may be granted,--otherwise the application must be refused. Com. vs. Flanagan--Supra. I think it is very clear that the after discovered evidence, relied on in this case, utterly fails to furnish a sufficient reason for granting a new trial.
    There is one point I omitted to advert to in considering the class of reasons relating to the empanelling of the jury, which may be misunderstood unless special attention be given to it. It is alleged that when John Fishburn and others were challenged, the commonwealth's peremptory challenges had already been exhausted. This is simply not true, in fact. The third peremptory challenge made by the commonwealth was that of Wm. McAllister, and the fourth and last that of John Fishburn. The commonwealth did not offer nor pretend to make more peremptory challenges than the four allowed by the stature.
    And now, after a most careful and anxious review of this whole case, I am convinced that it would be worse than useless to grant a new trial. That old Mrs. Mary Kiehl was murdered by arsenic the evidence leaves no room for doubt, and the evidence points clearly to this prisoner as her murderer. The attempt to throw suspicion on Mrs. Reed has wholly failed. The trial was a fair and impartial one, and the verdict of the jury is, in my opinion, fully justified by the law and the evidence.
    These are my opinions and they must be honestly expressed, let the consequences be what they may. If I could find any just and rational cause for giving the prisoner a second chance for her life, I would gladly do so, but no such cause exists; and to hesitate in the performance of my duty would be most unjust to this community, with the execution of whose laws I have been entrusted.
    And now to wit: 18th December, 1879. The motions for a new trial and in arrest of judgment are overruled; and it is ordered that the prisoner be called for sentence, on motion of the district attorney.

    On motion of the district attorney, the following sentence was pronounced by his honor, Judge Herman:
    After a fair and impartial trial, conducted with a due and just consideration of all your legal rights and privileges as a citizen under the protection of the law, a jury of your county has found you guilty of murder of the first degree. This is the highest crime known to our laws, and demands, as a penalty, the forfeiture of your life. The victim of your crime, although she had attained the age of eighty-one years, was, it appears, in vigorous and robust health, when you, for some wicked and devilish purpose, began the destruction of her life by administering to her a most deadly poison. You persistently pressed on in your cruel and fatal work until you succeeded in the accomplishment of your purpose. No doubt you supposed your work was being done in so subtle and secret a way, as that no human agency or efforts would ever discover the crime and your connection with it. But in this you have been signally disappointed. Immediately or soon after the death of your victim a crime was suspected to have been committed, an examination was made, inquiries were set afoot, a legal investigation followed and the research is that you stand before us as the convicted murderer of Mrs. Mary Kiehl. But I will refrain in this sad and painful hour, from harassing your mind by a recital of the details and consequences of your crime. I admonish you to devote your remaining days to the preparation of yourself for the death that awaits you. Humble yourself before the Throne of Grace, and having confessed your sins, plead for mercy and forgiveness. It remains for me to pronounce the sentence of the law, and it will remain for you to expiate, before God and man, the great crime you have committed.
    The sentence of the law is that you, Catharine Zell, alias Windowmaker, be taken hence by the sheriff of Cumberland county to the jail of the said county from whence you came, and from thence to the place of execution, within the walls or yard of the said jail, and that you be hanged by the neck until you are dead, and may God have mercy on your soul.
    By the court,
                                                    MARTIN C. HERMAN,
                                                         President Judge.

Source:

Unknown, "A New Trial Refused, Mrs. Zell Sentenced for the Murder of Mrs. Kiehl," Valley Sentinel, Carlisle, Pa., Friday, 19 December 1879, page 5, cols. 4-6.