The life of John Worth Kern

by Claude G. Bowers

III

After the election of 1870 and his marriage the young lawyer went forward by leaps and bounds in his profession. In the fall of 1870, before he had reached his majority, he was employed as special prosecutor in a sensational murder case involving a prominent family of Kokomo. Before this Kokomo had suspected that he was a brilliant criminal lawyer. Afterward it knew it. For in this case the youth of less than twenty-one found himself pitted against two of the giants of the Indiana bar, Thomas A. Hendricks, his political idol, and Major Jonathan W. Gordon, considered by many the greatest criminal lawyer and advocate who ever practiced in the courts of the commonwealth. It is related that during the trial, which was held in an adjoining county, Kern became careless in his attendance in court, and there was a disposition to consider him out of the case. In indignant mood he sauntered into the court room just as an argument as to the admissibility of evidence was being made by both Hendricks and Gordon. Much was involved in the point and the two legal giants had carefully prepared for the battle. At the conclusion of their arguments Kern arose, without having looked into a single book, or left his seat after hearing the issue, and delivered what was considered one of the most convincing arguments heard in the case, and the court sustained him. After that he took part in all the arguments that arose, and always with brilliant success. At that time he made of the two great lawyers pitted against him life-long friends and admirers. Hendricks took him aside and with a great show of interest advised him as to his course, and it was on this occasion that the great politician made the prediction that “the time will come when that young man will be the leader of the Democratic party in Indiana.”

From that time on he was engaged on one side or the other of every murder case and of most of the important criminal cases tried in Howard or the adjoining counties. He developed with remarkable rapidity into a great trial lawyer. His eloquence, his knowledge of fundamental principles, his quick grasp of the situation, made him a dangerous opponent for the most experienced. In those days he was careless in the preparation of his cases. It was said of him that he could go into a case with one day’s notice and apparently be as well prepared as though he had given six months to preparation. Judge Harness, his last partner in Kokomo, found him “a master in marshaling his facts and in getting everything out of a case there was in it—and frequently much more.” He was an expert in handling witnesses, especially in cross-examination. He was dramatic, resourceful, a master of strategy. In one case where his client was accused of having stolen a pocketbook, he secured a wallet as nearly like the one in question as possible, and presenting this to the prosecuting witness pressed him for a positive identification. The witness walked into the trap and identified the substitute pocketbook positively as his own, on which Kern presented the pocketbook in question, thereby putting the prosecution to rout. In another case he was positive that the prosecuting witness was lying and he carried through a fine bit of dramatic acting with the desired result. Without a particle of previous evidence of the witness to rely upon, he theatrically opened the drawer of the desk before him and pulled out a roll of blank paper. Holding this in his hand and looking the witness in the eye he demanded fiercely—“Did you not on a certain occasion testify so and so in this matter?” The witness, frightened at the manner of the lawyer and suspecting that he had been trapped completely, wilted and confessed that he had testified differently before.

While capable of tricks of this nature he was not known as a “tricky lawyer” in the usual acceptance of the term. He was scrupulously ethical from the day he received his first case. This knowledge of human nature which made him a power in cross-examination made him almost irresistible before the jury in argument. Here he was the master. He ran the gamut of the emotions, passing from wit and humor to pathos, and then to satire, and then denunciation, keeping the jury in laughter or tears. Often he was able to literally ridicule a case out of court.

During the Kokomo days when he was prominent as a criminal lawyer he was at different times pitted against many of the giants of the bar. To attempt an enumeration of even the more prominent cases would be irksome. Strangely enough some of his greatest speeches in criminal cases were for the prosecution. He was of such a kindly disposition, so easily touched by suffering, and his sympathies were so readily reached that among the leading criminal lawyers of those days he seemed the least adapted to the role of prosecutor, and yet he probably figured more frequently as prosecutor than any of the others. The older people of Tipton county still remember his powerful argument and remarkably forceful peroration in closing for the prosecution in the murder case of State vs. Doles in Tipton in 1882. But a more interesting case is that of State vs. Hawkins, in which he appeared as special prosecutor at Kokomo in what was probably his last great criminal case in his native county, in 1885. Young Hawkins had been attentive to a young woman who had been taken out for a drive into the country by one of his friends and insulted. On returning to town the girl hastened to Hawkins with the story and without more ado he armed himself and went in search of the friend. After a few words Hawkins drew his gun and shot his victim down in cold blood. The family of Hawkins, realizing the seriousness of the situation, employed Cooper & Harness and O’Brien & Shirley, leading local lawyers, and instructed them to engage some famous criminal lawyer from Chicago or Indianapolis. Because Senator Voorhees had been remarkably successful in murder cases involving wrongs to women, he was engaged as the leading lawyer for the defense. Such vigorous steps to free the murderer of his son led the father of the victim, who had befriended Kern in his younger days, to engage him as special prosecutor. The case attracted state-wide attention. There were circumstances in the case differentiating it so radically from the cases of Mary Harris and Johnson that Voorhees was considerably embarrassed, but the matchless forensic orator exerted himself to the utmost. The closing arguments of Voorhees and Kern were made the same day, the older man speaking in the afternoon with his customary eloquence to a court room packed to suffocation, with great crowds packed tightly in the corridors outside and down the stairway. Kern closed at night in the presence of an equally great crowd. Never, perhaps, did he speak with greater power or eloquence. In the early part of his argument he turned his batteries of ridicule upon Voorhees in an effort to overcome the prestige of his name. So keen was this ridicule that Voorhees, hardened though he was by the blows of innumerable forensic battles, and until then, a warm friend of the younger man, squirmed uncomfortably in his seat, and turning to one of his co-counsel, asked, “Is he trying to insult me in this community?” Assured to the contrary, he settled back in his chair for a while, but, unable to stand it longer, he retired to the judge’s room, where he remained during the rest of the speech. “Mr. Kern,” writes A. B. Kirkpatrick, then prosecuting attorney, “was at his best and held the jury and audience spellbound as he swept everything before him by his irresistible logic and eloquence. At its conclusion, Senator Voorhees said with a qualifying adjective that it was a shame to have a man like John Kern make the closing speech in such a case. Kern easily won the laurels over the senator.”

The defendant was found guilty, and there are reasons to believe that Voorhees never forgave Kern’s ridicule of him, and in time found a way to make his displeasure felt.

During his Kokomo days the bar of Howard and surrounding counties, while having its full share of backwoodsmen, was strong in a number of exceptionally able lawyers. Kern’s practice extended over Howard, Tipton, Grant, Miami and Cass counties. In those days he frequently crossed swords with D. D. Pratt, Horace P. Biddle, Judge Nathaniel R. Lindsay, McDowell Van Devanter, father of the present justice of the United States Supreme Court, Col. Asbury Steele, R. T. St. John, Joseph A. Lewis, Nathan Overman, Joel F. Vaile, now the leader of the Denver bar, Dan Waugh, and of course all the leaders of the Howard bar. As a criminal lawyer he surpassed them all and held his own with the greatest in the state. “As a criminal lawyer,” writes A. B. Kirkpatrick, “Kern in his prime was perhaps not excelled in Indiana. I have seen Senator Voorhees, Major Gordon, John S. Duncan, Henry N. Spaan and Major Blackburn in the trial of criminal cases and in my opinion none of them excelled Kern.”

Such was his status professionally during his Kokomo days.