My Great Uncle Charlie’s beloved dog Old Drum, was shot by his brother-in-laws nephew at the instigation of the brother-in-law they owned farms next to each other in Missouri
From: MISSOURI STATE ARCHIVES
Man’s Best Friend: The Old Drum Story
Old Drum Remembered
Monument to Old Drum
A monument to Old Drum was erected on December 12, 1947, by Fred
Ford of Blue Springs, Missouri. Ford placed the monument on the
banks of Big Creek approximately where Old Drum was found after he
had been shot.
Ford received donations of money and rocks from all over the world to
create the monument. The sixty-seven block base of the monument
consisted of small rocks placed in cement blocks labeled with metal
donor name plates. Dog lovers sent stones from the Great Wall of
China, Mexico, the West Indies, South Africa, Germany, Guatemala,
France, the White Cliffs of Dover, Jamaica, and most of the states in
the U.S. Unfortunately, due to vandalism in later years, the original
base no longer exists.
The part of the original monument that still remains was constructed by
the Indianola Memorial Works at Indianola, Iowa, using gray granite
stone. The monument is illustrated with a dog treeing a coon in the
middle, a fox in one corner, and a deer being chased in the other. It
contains the inscription: Killed, Old Drum, 1869. It remains a symbol of
all dogs that people have loved and lost.
The Old Drum Memorial
Today a monument to Old Drum stands in Warrensburg, Missouri,
along with the words of Vest’s eulogy. On September 23, 1958,
through the coordinated efforts of the Warrensburg Chamber of
Commerce and dog lovers from around the country, Old Drum was
immortalized in statue by the sculptor, Reno Gastaldi.
On the southeast corner of the current Johnson County Courthouse
lawn, stands a bronze statue of the much beloved black and tan hound,
Old Drum. The sculpture is of a hunting dog standing on all fours, with
tail lowered and head up. On the front of the trapezoid concrete base
on a plaque in raised letters, appear Vest’s well-known words which
Missouri State Archives
Man’s Best Friend:
The Old Drum Story
The story of the Burden v. Hornsby trial, involving the untimely death of a black
and tan hound dog named Old Drum, comprises people and events that have
become more legend than fact. Yet, the Burden v. Hornsby trial, or the Old
Drum trial as it came to be known, is a true story well-documented through
court records progressing from a Justice of the Peace to a final appeal before
the Supreme Court of Missouri.
The Story of Burden v. Hornsby
The Death of Old Drum
On the 28th of October in 1869, around 8 o’clock in the evening, Charles
Burden heard the fire of a gun from the direction of his neighbor’s adjoining
farm only a mile south.
His brother-in-law, Leonidas Hornsby, owned the adjoining farm about five
miles southwest of Kingsville in Johnson County Missouri. It was only four
years after the Civil War and farming was beginning to return to the war-torn
western counties of Missouri. Lands once plundered by guerillas and raiders
now began to support families attempting to farm and raise livestock.
Leonidas Hornsby was doing his best to farm, but was struggling to maintain
his flock of sheep because of the constant threat of prowling dogs and wolves.
He had lost more than a hundred sheep and made a vow to kill the first stray
dog that appeared on his property. On the evening of October 28, Leonidas
made good on his promise after a hound dog wandered into his yard.
Samuel “Dick” Ferguson, Hornsby’s young nephew, immediately proposed to
shoot the intruder. Thinking it might be a neighbor’s dog and in an effort not to
kill the dog, but merely scare it, Hornsby instructed Ferguson to load the gun
with corn and then take the shot. According to Ferguson, after the dog was
shot it yelped in pain, jumped over the fence, and disappeared.
Neighbors heard the howling of the wounded dog as it grew fainter and then
finally died away. Charles Burden also noted the silence following the sound of
the gunshot. He remembered Hornsby’s threat and feared the worst. He called
his dogs, but his favorite hunting dog, Old Drum, did not come.
After Old Drum failed to come home the next morning, Charles Burden began
the search for his missing dog. First, he went to his neighbor Hurley and inquired about Old Drum’s whereabouts. Then, he went to the farm of Leonidas Hornsby and began to question him. After Hornsby denied having seen Old Drum, Burden asked, “What dog was that you shot last night?”
Hornsby replied that he had not shot any dog, but that his nephew Dick had
shot at a dog he thought belonged to their neighbor, Davenport.
Unconvinced and angry, Burden replied, “I’ll go and see it may not be my dog.
If it ain’t it’s all right. If it is it’s all wrong and I’ll have satisfaction at the cost of
my life.” He then left his brother-in-law’s property to continue the search.
On that same morning of October 29, Burden, along with a neighbor, found Old
Drum dead lying with his head in the water on the banks of Big Creek just
below Haymaker’s Mill. He appeared to have died from multiple shots of
different sizes with no hole completely penetrating the body. It was apparent to
Charles Burden that Old Drum had been carried or dragged to his final resting
place along the banks of the river. There was mud on Old Drum’s left side, the
fur on his ear and side were roughed up the wrong way, and evidence of sorrel
horse hairs were on his body. Coincidentally, Leonidas Hornsby owned a
sorrel mule. To Burden, the circumstantial evidence was overwhelming.
The Burden v. Hornsby Trial
Unable to let the death of his prized hound dog go unpunished, Burden filed a
lawsuit for damages against Hornsby. A summons was issued to Leonidas
Hornsby to appear before Justice of the Peace Munroe of Madison township on
November 25, 1869. Burden originally asked for a $100 judgment in damages.
Hornsby’s attorneys, Nation and Allen, filed a motion to dismiss because the
amount sued for was beyond the jurisdiction of the Justice of the Peace.
However, Burden was allowed to file a motion to amend, changing the amount
to the legal limit allowable of $50 for the worth of Old Drum, and the trial
· Summons, Leonidas Hornsby, November 25, 1869
· Motion to Amend Statement, November 25, 1869
The jury was not able to agree on whether Hornsby was guilty for instructing his
nephew to shoot the dog. The trial was rescheduled for December 23, 1870,
but was continued until January. In this second trial on January 27, 1870, a
verdict of guilty was returned and Burden was awarded $25 plus court costs.
· Transcript of Proceedings before Justice of the Peace, February
Hornsby appealed the case to the Johnson County Court of Common Pleas in
Warrensburg. He claimed that amendment of the original statement to bring
the case before the Justice of the Peace should not have been allowed. New
lawyers were hired, with Thomas T. Crittenden and Francis M. Cockrell now
representing Hornsby and George N. Elliott and Wells H. Blodgett representing
Burden. The trial date was set for March 25, but later moved to March 30.
· Subpoena for Court of Common Pleas, March 30, 1870
According to their testimony, Hornsby and Ferguson went back to Big Creek,
where the body of Old Drum still lay, and removed lead bullets after the
January trial at Kingsville. Because the burden of proof could not be
established, there was doubt as to whether Hornsby was directly the cause of
Old Drum’s death. On April 1, 1870, Hornsby received a verdict in his favor in the amount of court costs.
Dissatisfied and still seeking justice for his dead dog, Burden filed a motion for
a new trial alleging the discovery of evidence not available before. A new trial
was granted and Burden hired the Sedalia legal team of John F. Philips and
George G. Vest. A formidable group of attorneys now sat on both sides of the
On September 21, 1870, in what is now known as the Old Johnson County
Courthouse in Warrensburg, the case went to trial for the fourth time. As the
court convened, Judge Foster Wright looked out on a packed courtroom and
four prominent lawyers destined to become known as Missouri’s Big Four.
Hornsby was represented by the firm of Crittenden & Cockrell, with Philips &
Vest now joining Elliott & Blodgett for Burden.
· Old Johnson County Courthouse
· Missouri’s Big Four
Arguments were made by both sets of attorneys. Depositions from witnesses
now out of state in Kansas and Texas were read in evidence. The defense
tried to show that Old Drum was sighted at Haymaker’s Mill and shot there
around the same time a different dog was shot at Hornsby’s farm. Hornsby
admitted to telling his nephew to shoot at a dog, but denied the dog was Old
Drum, even though no other dog was found dead.
On September 23, 1870, Vest presented the closing remarks on behalf of
Burden and Old Drum. However, he made no reference to the evidence or to
Old Drum, but delivered a powerful tribute to all dogs and their masters.
Following his summation, the jury quickly returned a verdict in favor of Burden
in the amount of $50 and court costs. Even though Vest’s Eulogy of the Dog
was not written down until some time after the trial, the speech became famous
because of its universal appeal to dog lovers everywhere. Eulogy of the Dog
After the war he returned to Pettis County moving to Sedalia,
Missouri and resumed his law practice. It was at this time in
1869 that Vest was asked to represent Burden and Old Drum
in the case that would make him famous.
Vest took the case tried on September 23, 1870 in which he
represented a client whose hunting dog, a foxhound named
Drum (or Old Drum), had been killed by a sheep farmer. The
farmer had previously announced his intentions to kill any dog
found on his property; the dog’s owner was suing for damages
in the amount of $50, the maximum allowed by law.
During the trial, Vest stated that he would “win the case or
apologize to every dog in Missouri.” Vest’s closing argument
to the jury made no reference to any of the testimony offered during the trial, and instead offered a eulogy of sorts. Vest’s “Eulogy of the Dog” is one of the most enduring passages of
purple prose in American courtroom history (only a partial
transcript has survived):
“Eulogy of the Dog” text
“Gentlemen of the jury: The best friend a man has in this world may turn against him and become his enemy. His son or daughter that he has reared with loving care may prove ungrateful. Those who are nearest and dearest to us, those whom we trust with our happiness and our good name, may become traitors to their faith. The money that a man has, he may lose. It flies away from him, perhaps when he needs it the most. A man’s reputation may be sacrificed in a moment of ill considered action. The people who are prone to fall on their knees to do us honor when success is with us may be the first to throw the stone of malice when failure settles its cloud upon our heads. The one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him and the one that never proves ungrateful or treacherous is his dog. Gentlemen of the jury: A man’s dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground, where the wintry winds blow and the snow drives fiercely, if only he may be near his master’s side. He will kiss the hand that has no food to offer, he will lick the wounds and sores that come in encounters with the roughness of the world. He guards the sleep of his pauper master as if he were a prince. When all other friends desert, he remains. When riches take wings and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens. If fortune drives the master forth an outcast in the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying him to guard against danger, to fight against his enemies, and when the last scene of all comes, and death takes the master in its embrace and his body is laid away in the cold ground, no matter if all other friends pursue their way, there by his graveside will the noble dog be found, his head between his paws, his eyes sad but open in alert watchfulness, faithful and true even to death”
Missouri state archives
The litigation continued with Hornsby appealing the decision to the Missouri
Supreme Court. Hornsby’s attorneys claimed the judgment should be reversed
because the Justice of the Peace allowed the original statement to be amended
from $100 to $50 and the Court of Common Pleas granted Burden a new trial.
During the July 1872 term, the judgment was affirmed by the Missouri Supreme
Court. Charles Burden finally had justice for Old Drum.
· Burden v. Hornsby Opinion, July Term 1872
· Burden v. Hornsby Opinion, Mo. Reports, vol. 50, 1872