The life of John Worth Kern

by Claude G. Bowers

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.

IV

The Kokomo of Kern’s time was one of the live-wire towns of the state. He has himself described it in his address at the James Whitcomb Riley birthday dinner many years afterward, when he said: “And where did I first meet Riley? Where do you suppose I met him? Why, in Kokomo, of course! Where else could I have met him? What was he doing in Kokomo? Why did he come to Kokomo? Because the afflatus was in Kokomo in those days. The divine afflatus, the prophetic afflatus, afflatus in unbroken and original packages; some in broken and aboriginal packages.”

When the sign “John W. Kern, Attorney at Law,” was hung out in 1870 there were no factories as now and no artisan class. It was above the average of county seats at the time and yet they were just beginning to build streets and it was not an extraordinary sight to see wagons mired in the thoroughfares. There were no clubs, but the “poor man’s club” was all too much in evidence, and the Clinton House, standing on the present site of the Frances Hotel, was a favorite gathering place for the gossips. It was a paradise for the gambler—the happy hunting grounds of the sporty element who flocked from afar, flamboyant in its cheap finery, unafraid of the law or the authorities, plucking the innocents without let or hindrance, crowding the “poor man’s clubs” with boisterous company. And just beyond this element in a sort of a mysterious haze loomed a more sinister element supposed to be engaged in transactions frowned upon by the laws of state and nation. This was the situation during the first twelve of the fifteen years of Kern’s residence in the town. Then something happened that brought about a cleansing. For many years the most powerful citizen, politically, among the lower strata was a physician, who was highly skilled in his profession, and known professionally over the state. He never charged the very poor for his services and thus he ingratiated himself into their affections, and he exercised a sway over the sporty element which was long hard to analyze. Many feared him without knowing why. One day, while mayor of the city, the police were informed by a traitor in his camp, who apparently feared him, that he proposed to burn the flour mill belonging to one of his enemies, and carry a leaking sack of flour to the home of another of his enemies, feared by the doctor, with the view to getting him out of the way by way of the penitentiary on the charge of arson. The police appeared at the mill as the doctor emerged with his sack of flour, and in his attempt to escape he was shot down. The incident created a sensation. The community was divided as to his guilt or innocence, and to this day there are some who cling to his memory as to the memory of a martyr. But the fact was developed that the prominent physician, potential politician and mayor was the head and brains of a lawless gang which had been under the observation of the federal secret service. His death scattered the gang, and with the gang the criminal element which revolved about it. The gamblers took to their heels. The new Kokomo emerged. But it was in the old Kokomo that John Kern passed his younger days.

It was in the midst of this environment that he was left alone, master of his own destiny, at the age of twenty. For almost immediately after he began the practice of his profession his father, hearkening to the call of the Old Dominion, and taking his daughter Sally with him, bought a home in Carvin’s Cove, a basin seven miles from Roanoke, and so surrounded by spurs of the Blue Ridge Mountains that there is but one entrance to the cove for vehicles. Here during the remainder of his life he lived the life of a recluse with his books, dogs, poultry and cattle, going every Sunday to church to teach a Sunday school. Here in the Cove Alum church on the frequent occasions of John Kern’s visits, the father listened proudly to the eloquence of the son he idolized.

But the young lawyer was always surrounded by a multitude of friends, good, bad and indifferent. His witticisms were passed about. His practical jokes were laughed over. His popularity was extraordinary. He was eagerly welcomed in every home. A slight figure, he had temper and it was known that he would “fight at the drop of a hat,” no matter how much larger and heavier his adversary.

Recognized as the orator of the community, the young lawyer was in constant demand as a speaker on all imaginable occasions, from old settlers’ meetings and Sunday school picnics to mass meetings to serve some public end.