Editor’s note: In the course of researching the recent ruling in Texas that dogs are property and therefore
owners can’t seek damages for emotional loss, I ran across this amazing tale from 19th century Missouri. It deals with the death of a beloved dog, Old Drum, at the hands of a neighbor, and the high-powered trial that resulted was a cause celebre. The closing argument of attorney George G. Vest has gone down in history as among the more powerful tributes to the friendships between dogs and people. Here’s the complete story from the Missouri State Archives.
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.
where Old Drum was found after he had been shot.
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.
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
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.