Missouri Digital Heritage :: Education :: The Old Drum Story :: Story of Burden v. Hornsby

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 wolvesHe 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 proceeded. 

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.

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. 

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 table. 

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.    

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.

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.