Zell v. Commonwealth

• Decision Date: 24 February 1880
• Citation: 94 Pa. 258
• Parties: Zell v. The Commonwealth.
• Court: Pennsylvania Supreme Court

94 Pa. 258

Zell v. The Commonwealth.

Supreme Court of Pennsylvania.

February 24, 1880

February 9, 1880

1. In an indictment for murder where a juror is accepted by the prisoner and then stood aside by the Commonwealth, if the facts show no improper motive in standing him aside, the Commonwealth may afterwards peremptorily challenge him.

2. It was contended that the court erred in allowing the Commonwealth to challenge jurors for cause, on account of the answers made by these jurors, without their having been first sworn on their voire.?? dire. No request was made that the jury be sworn on their voire dire, nor objection made to their examination without, nor exception taken to their challenges for cause. Held, that the court did not err.

3. Per TRUNKEY, J.--" We will remark, however, that though it may not be erroneous to omit the oath, unless it be requested to be taken, yet, so far as advised, it is the more general practice, and we think the better one, to examine the juror under his oath."

4. Where an attempt is made to discredit the statement of a witness, evidence is admissible to show that the witness made said statement at another time to other parties to show that the statement is not a fabrication of recent date, and as bearing on the witness's credibility.

5. Where an indictment is for murder by poison, to establish the corpus delicti the evidence is sufficient where it fully satisfies the jury of the fact beyond all reasonable doubt.

6. Where the charge was just to the prisoner, and the points fully answered, the court will not be convicted of error for not having instructed on a point which was not presented.

7. Where in capital cases incompetent evidence is received on the faith that it will become competent before the trial closes, and it is not promptly withdrawn from the jury, when it became certain that this condition was not complied with and the tendency of the evidence is to affect the credibility of an important witness, or to establish the prisoner's guilt, this court will reverse.

Before MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ.

SHARSWOOD C. J., and GREEN, J., absent.

Error to the Court of Oyer and Terminer of Cumberland county: Of May Term 1880, No. 88. Certified from the Middle District.

Indictment of Catherine Zell for the murder of Mrs. Mary Kiehl, by poison.

The facts are sufficiently stated in the following summary of the evidence as made by the court below, Herman, P. J., in the charge to the jury.

From the evidence on the part of the Commonwealth, it appears that Mrs. Mary Kiehl, an aged widow lady who resided near the fair ground in Carlisle, died on the night of Friday, the 30th of May 1879. At the time of her death she was 81 years old. She was buried on Sunday afternoon, the 1st of June.

" Some suspicions having been aroused as to the cause of her death, the coroner, on the 6th of June, had her body exhumed and held an inquest upon it. At the inquest, Dr. Kieffer was called upon to make a post-mortem examination of the body which he did. He has been examined as a witness before you, and has detailed in your hearing the manner in which this post-mortem examination was made, and has given, in minute detail, a description of the post-mortem appearances of the body as he found them. He says that, on account of the condition in which he found the stomach and bowels, he could not but feel that this condition was unnatural, and could not have been caused by any disease of which he had any knowledge; that, therefore, in his judgment, it must have been the result of violence, that the subject had certainly taken, he thought, poison in some form; that his own impression was that it was some inorganic poison. He also says that he tied the stomach at both ends so as to preserve its contents, and removed it from the body; he also removed two sections from the small intestines, one about two yards from the stomach, and one lower down, of about nine inches each, and also one section from the colon, about five inches long. He also removed three different sections of the liver, which would have constituted about one-fifth of the entire organ. The portions of the stomach and the intestines which he removed were placed in a clean jar by themselves, and the three sections of the liver into another clean jar by themselves.

These jars, with their contents, the coroner says, he subsequently placed in the hands of W. F. Horn, a druggist and chemist of this place, for the purpose of making a chemical analysis of the contents. Mr. Horn says he made a chemical analysis of the contents found in the two jars and found arsenic.

Mrs. Rebecca Reed testifies, that on Tuesday evening, the 27th of May 1879, she came in to see Mrs. Keihl, to cure her of the wild-fire, and that Mrs. Keihl complained of not being so well, saying she had fallen down the cellar stairs and hurt herself; that she, Mrs. Reed, remained a short time after giving her a cure for the wild-fire, then came in to attend the evening market, and after market returned to Mrs. Keihl's house; that when returning, and she came near to the house, she met Mrs. Zell, the prisoner, coming away from the house with a little tin cup in her hands, and that Mrs. Zell said she had just been up to Mrs. Keihl's, and had taken her some beef and coffee and crackers, and that Mrs. Zell should go along back and show her how she had cleaned Mrs. Keihl's house; that they went back, and Mrs. Zell showed how she had cleaned Mrs. Keihl's house; that both went back to the dining-room; and she showed Mrs. Keihl's front room; and that after some conversation about Wynkoop, Mrs. Zell went home. Mrs. Reed says she went home, and on Wednesday, the 28th day of May, at 4 o'clock, she came in town to attend the morning market, and after market, returned to Mrs. Keihl's house between 8 and 9 o'clock; that when she got back to the house, a pot of coffee, which is before you, was standing on the stove, and breakfast was partially prepared; that, at Mrs. Keihl's request, she continued the preparation of the breakfast, and both sat down to eat it; that they partook of coffee, and both got very sick and vomited violently. Then the witness went on to say Mrs. Keihl felt dreadfully, and said she believed they were poisoned. ‘ I asked her who she thought could do such a thing as that; she did not say. She said she felt so sick that she would lie down on the floor; all appeared black before my eyes; I felt sick; I said I wished I had a doctor. She said she believed we would get better again. She then sat up on the floor and laid on a clair, then I went down and she went down. I said then, I will go home. I was to sweep and black the stove, and that,’ she said, ‘ I was not able to do. I started home, then she said, when I left, ‘ if I get such another good coffee and get sick, she would let me know and come in again, and see what was in it that made her so sick.’ I started for home then, and she was sitting on the chair; she was looking at some seeds, and I went out of the gate. Then she came to the door, and stood under the door and said good-bye, I saw Mrs. Beals when I went out. * * * In going home I fell down a couple of times with weakness. I felt so bad.'

On Friday, the 30th of May, Mrs. Keihl died, about half-past 9 o'clock.

Mrs. Reed further testifies, that the next time she saw Mrs. Zell was on Tuesday evening, after her death. That she then told Mrs. Zell that she was so shocked to hear that Mrs. Keihl was dead. That Mrs. Keihl had asked her to come if she got worse, and that she and Mrs. Kiehl had both got sick of that good coffee Mrs. Zell had made. Mrs. Zell said she did not know Mrs. Keihl had thrown up so, but only that Mrs. Reed had thrown up; and that Mrs. Zell admitted she had drawn the coffee, and took it home, what was left of it, and used it in the morning; and that it did not make them sick. That Mrs. Keihl had thrown up so she did not know what to do. That she (Mrs. Zell) had waited on her (Mrs. Keihl). That then she (Mrs. Reed) asked Mrs. Zell why she did not send for a doctor. That Mrs. Zell replied, God Almighty was her doctor, and she did not want any other.

It seems that the house in which Mrs. Keihl resided was closed up after her death, and remained unoccupied for some time, Joseph Kutz, the son-in-law, having the keys, and 'Squire Wynkoop afterwards coming into possession.

Frederick Hayes testifies that he went to the house on the 28th of July after Mrs. Keihl's death, and got from the kitchen two tin coffee pots, which he took directly to Horn, the chemist, and gave them to him; and it appears, by the testimony of other witnesses, that after Wynkoop got possession, a package, labeled ‘ arsenic, poison,’ was taken from a bandbox found under the bed in the up-stairs front room by Mrs. Wynkoop, and that this was subsequently placed in the hands of Horn.

Mr. Horn testifies he afterwards made a chemical analysis of the substances found in the coffee pot, and that he found arsenic. He also testified that he examined the substance contained in the package labeled ‘ arsenic, poison,’ and believes it to be arsenic.

Mrs Anna Minnich testifies that on the Wednesday morning before Mrs. Keihl's death, between 7 and 8 o'clock, as near as she can remember, she saw Mrs. Zell with a bowl and plate going from her own house in the direction of Mrs. Keihl's house, and that Mrs. Zell said that she was taking Mrs. Keihl some coffee and something to eat; and Levi Barrick, another witness, testifies that between 7 and 8 on the Wednesday morning before Mrs. Keihl died, he came to the house with a load of wood to sell, and that Mrs. Zell was there when he came, and told him Mrs. Kiehl had hurt herself pretty badly, that she had fallen down stairs,...