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March 15, 2012

1869 October 28 Old Drum owned by Charles Burden is Killed by Leonidas "Lon" Hornsby - The True Story

Nathan Hale - The Trial of Old Drum - video link

"Old Drum" Story Valley View and Monument


By Walter L. Chaney 
During the autumn of 1869, five miles southwest of Kingsville, lived Leonidas Hornsby, and a mile south of him lived his neighbor, Charles Burden. At this time there was still wild game. Men kept hounds for the chase. Charles Burden kept a pack. Wolves had multiplied, there were still some deer in western Missouri, the raccoon was plentiful, and foxes and other wild animals were still to be found. The hunters learned by the baying of the dogs and the direction and manner of the chase what sort of game was being followed. Some of the dogs were better than others at telling the story to their hunter owners; some dogs "never lied;" some dogs sometimes failed and other dogs could never be depended upon.
There was one dog in Charles Burden's pack that "never lied." He was supposed to be about five years old (he was few months old at the end of the Civil War in 1865); in color, he was black and tan, with black body, tan legs, and muzzle. This mighty hunter was named "Old Drum." His owner believed he had some bloodhound in him. He would trail a man and was good for wolves, "varmints," and the like. Charles Burden regarded him as the best deer dog he had ever owned. He said that money would not buy "Drum."
Burden (a former Union soldier) was a hunter and had crossed the plains many times. He was a strong character, six feet tall, with blue eyes and light hair, with a magnificent physique, and an iron constitution. He was ready to fight for his own, either dog or man. Burden lived in a two-room log house with a shed on the north side, down in the second bottom of Big creek.
Lon Hornsby had gathered sheep and cattle, hogs and horses, and was doing his best to farm. Hornsby was a small, wiry man with flaming red hair, and, as they say, "he was set in his way." During the summer and fall of '69 Hornsby had lost more than one hundred sheep, killed by prowling dogs. In an unadvised moment, he made a vow that he would kill the first dog that he found on his place. Hornsby did not believe that all dogs were bad, for he had sometimes hunted with his neighbors' dogs, and had repeatedly hunted with "Old Drum." But he had made the vow, and in his way of seeing things he would keep it.
On the morning of October 28, 1869, Charles Burden took his way north and east, passed Leonidas Hornsby's house to Kingsville, attended to his business there and came home. Shortly after his return, "Old Drum" started on a trail, off up the creek, in a northeast direction. Burden and his brother-in-law and Frank Hornsby sat around the house smoking until about eight o'clock, when they heard the report of a gun, from the direction of Lon Hornsby's. No more shots were heard. But Burden was fearful that they had killed one of his dogs. He went out to listen but could hear nothing. He blew his hunting horn for the dogs, and all came up but "Old Drum." Again and again called the old horn, but "Old Drum" did not answer, nor did he come. No more would "Old Drum" answer Burden's hunting horn.
On this autumn day Lon Hornsby and Dick Ferguson had been hunting. After they returned home about eight o'clock someone said that a dog was in the yard. Lon Hornsby told Dick to get the gun and shoot the dog. He went and got the gun. Dick stepped out doors; there was no moon; a dark dog was in the shadow of a tree some thirty steps away. There was a report of the gun fire, and then the yelping and howling of a dog mortally wounded. He ran southwest and jumped over the styleblock. The crying of the wounded dog grew weaker and fainter until it died away, and then the silence of a dark night brooded over the land.
Next morning Charles Burden began the search for his dog. When he came to the home of Lon Hornsby, Hornsby said that Dick had shot a dog; that he thought it was Davenport's dog. Dick showed Burden where the dog was when he shot him. Burden looked for traces of blood and found none. They then came back and Burden said to Hornsby, "I'll go and see; it may 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."
On this morning of October 29, "Old Drum" was found just a few feet above the ford on Big creek, below Haymaker's Mill, dead, lying with his head in the water, his feet toward the dam, lying on his left side, filled with shot of different sizes, but no shot had passed through his body. Apparently "Old Drum" had been carried or dragged to this place; for there was mud on his underside; his hair was "ruffled up," and there were sorrel hairs, thought to be horse hairs, under him. Lon Hornsby owned a sorrel mule. The whole neighborhood seemed to have been alive around Haymaker's Mill that night of October 28. There were campers at the ford, two large families moving; then two families lived within about a thousand yards of the ford; these people had heard nothing.
Burden decided that the law should vindicate him and avenge "Old Drum." Shortly he went to Kingsville and employed an attorney to bring suit. Suit was filed before Justice of the Peace Monroe, of Madison township, and the case was set for trial November 25. Thomas S. Jones was attorney for Burden and Nation & Allen for Hornsby, and with a cloud of witnesses in attendance, the case went to trial. The jury failed to agree, were discharged by the justice, and the case was set for trial on the justice's next "law day," December 23. Many threats were made and much bitterness was shown by the partisans at this first trial, but all went off without anyone being wounded or crippled.
In January the case went to trial, and after a heated session, was given to the jury, who found in favor of Burden in the sum of twenty-five dollars. Hornsby appealed to the Johnson County Court of Common Pleas, where it was set down for trial in March, 1870. The whole neighborhood, at least the men, moved upon Warrensburg en-masse. New lawyers had been retained by both the appellant and appellee, Crittenden & Cockrell for Hornsby, and Elliott & Blodgett for Burden. At this trial Hornsby received a verdict in his favor.
Burden still sought satisfaction and after his first trial he retained more legal talent, securing Phillips & Vest from Sedalia. A motion for a new trial was filed, alleging error and setting up that the plaintiff. Burden, had discovered new evidence. The motion was sustained and a new trial granted. 
So in October in the old court house in Old Town this case went to trial for the fourth time, with the counsel table crowded with attorneys on both sides, and the Burden and Hornsby clans out in full force. Burden and his friends proved the facts already stated. Hornsby by himself and his witnesses showed the shooting of a dog, but denied it was "Old Drum" that was shot. He and Dick Ferguson claimed they had gone down to "Old Drum's" body and taken out lead bullets, and that the dog shot at Hornsby's was with a gun loaded with grains of corn. There was evidence that "Old Drum" was shot close to the mill where he was found and other evidence that no shot had been fired near the mill.
After all the evidence was in, the argument was made by the attorneys. What all these lawyers said is not remembered. But one speech made to the jury is preserved to all posterity, because of its universality of application to all dogs and their masters. It will forever be a monument to "Old Drum." George G. Vest made the closing argument for his client and old Drum. Here is old Drum's monument and Senator Vest's plea;

Old Drum - Historic 1869 "Eulogy for a Dog" Video

"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 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, 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 fierce 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 from encounter 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 wing 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 its company to guard against danger, to fight against his enemies, and when the last scene of all comes, and death takes the master in his 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 in death."
In a few moments the jury returned a verdict for Burden.
The end was not yet. Hornsby's attorneys appealed the case to the Supreme Court of Missouri. This court, however, affirmed the judgment of the lower court, affirmed that Dick Ferguson, by the direction and command of Lon Hornsby, killed old Drum, and gave Charles Burden satisfaction. The case brought a lightening of the purses of the litigants; a feast of fees for the attorneys; an enduring tribute to the fidelity and faith of the dog, and more particularly, undying fame for the memory of old Drum, "the dog that never lied."
Out of this list of nine attorneys in this case, more than half achieved some measure of fame.

David "Dave" Nation, one of the first attorneys, did not attain any degree of fame, outside of his own village, yet fame was his in a vicarious sort, for he was the husband of Carrie Nation, the woman with the hatchet. Allen was familiarly known as Captain Allen and was a maker of business, a breeder of lawsuits. The firm of Nation & Allen kept things moving, where they went along in the town of Holden. Jones lived in Kingsville, practiced law there and bore the name of "Buffalo Jones," from his drinking of what was known as "buffalo bitters.Of the six attorneys whose names appear in the report of the case in the Supreme Court, all attained distinction. Elliott became judge of the court of common pleas in Johnson county. T. T. Crittenden became Governor of Missouri. Francis M. Cockrell was thirty years a United States Senator from Missouri, and afterwards a member of the Interstate Commerce Commission. John F. Phillips was made a commissioner of the Supreme Court of Missouri, and then judge of the United States District Court for the western district of Missouri. George G. Vest was United States Senator from Missouri for many years and died while a member of that body. Wells Blodgett was a state senator in Missouri, afterward became vice-president and general solicitor for the Wabash railroad.
Contributed; NLN

Leonidas Hornsby and Charles M. Burden were brother-in-laws and their farms joined. At the time of this event Leonidas Hornsby was 31 years of age and Charles Burden was 44. According to records they patched up their disagreement during their later years. Leonidas died in 1897 at the age of 59 and Charles died at his farm in 1911 at the age of 86. They are both buried very close together in the Hornsby Cemetery which is located less than a half mile south from the Hornsby home where Old Drum was shot.
Charles M. Burden was born in Kentucky and came to Missouri before the War Between The States. He was a farmer and known for owning choice land along Big Creek. 
The person who actually fired the shot that killed Old Drum was Samuel "Dick" Ferguson, Hornsby's young nephew. I wish to thank Sam Raber a lifelong resident of Holden, Missouri who I met while having lunch at, Jamie's Place, in Holden. He was very kind and courtesy to drive me around to the locations that were used to develop this story.
Story developed by Norman L. Newton, August, 2011 Johnson County History, published in 1918 used extensively in this story. (All photos were taken by N. Newton except for the one noted.) 

On December 12, 1947 a monument was placed upon the bank of Big Creek, by Fred Ford of Blue Springs, Missouri. This monument is near where Old Drum was found. Says, "Killed Old Drum 1869" 
From the Book by Lisa Irle, highly recommended, "Images of America, Warrensburg, Missouri" Available on Amazon. 

Man's Best Friend:
The Old Drum Story
Missouri’s Big Four
Probably more remarkable than the subject debated during the trial, a slain dog, were the lawyers involved. All the lawyers involved in the September 1870 Burden v. Hornsby trial achieved considerable success in later years. 

Immediately following the Civil War, two Union officers, John Finis Philips and Thomas Theodore Crittenden, formed law partnerships with two Confederates, Francis Marion Cockrell and George Graham Vest. Philips and Vest in Sedalia and Cockrell and Crittenden in Warrensburg became influential attorneys and major political figures in the Democratic Party earning them the title of Missouri’s “Big Four.” 
Francis Marion Cockrell 
Francis Marion Cockrell (1834-1915)
Cockrell was a native Missourian, born in rural Johnson County on October 1, 1834. He attended local schools and graduated from Chapel Hill College in Lafayette County in 1853. After teaching school for one term while he studied law, Cockrell was admitted to the bar in 1855. He practiced law in Warrensburg in partnership with James O. Silliman until the beginning of the Civil War. 
Cockrell enlisted as a private in the Missouri State Guard to oppose Federal efforts to keep Missouri in the Union. Despite little military experience, he later joined the Confederate Army as a captain and advanced to the rank of brigadier general before the end of the war. During the Civil War, he participated in major battles from Carthage and Vicksburg to Mobile, was wounded five times, and captured three times. After his capture at Mobile, Alabama, he was paroled and granted full amnesty. 
Cockrell returned to Warrensburg and formed a law partnership with Thomas T. Crittenden and entered Democratic politics. Even though he was unsuccessful in his bid for the governorship in 1874, he was elected by the Missouri legislature to the U.S. Senate a year later. Cockrell served for 30 years in the Senate and was later appointed by President Theodore Roosevelt to the Interstate Commerce Commission for a six-year term. Cockrell died in Washington, D.C. on December 13, 1915. 

Governor Thomas Theodore Crittenden
Thomas Theodore Crittenden (1832-1909)
Crittenden was born near Shelbyville in Shelby County, Kentucky, on January 1, 1832, to a prominent Kentucky family. He attended school in Clover Point, Kentucky, and in 1855 graduated from Centre College in Danville, Kentucky. By 1858 he had received his law degree and started a practice in Lebanon, Missouri, with partner, John A. S. Tutt. 
He entered the Civil War early as a strong Union man and helped organize the Seventh Cavalry of the Missouri State Militia along with John F. Philips. Shortly before the end of the war after obtaining the rank of lieutenant colonel, he was appointed to fill an unexpired term as attorney general. 
Crittenden relocated after the war and began his famous law practice with Confederate Brigadier General Francis M. Cockrell in Warrensburg, Missouri. In 1872 and 1876, Crittenden was voted into the United States Congress. At the close of his second term, he returned home and pursued the Democratic nomination for governor. 
Crittenden became the twenty-fourth governor of Missouri on January 10, 1881. As governor, Crittenden implemented a controversial strategy to rid the state of outlaw activity. He secured money from the railroads and offered large rewards for the captures and convictions of Jesse James and his gang. The James gang was finally brought to justice when in April 1882, Robert Ford, a fellow gang member, shot and killed Jesse and then, the following fall, his brother Frank surrendered to Crittenden himself. 
Crittenden left office applauded by many for breaking up the James gang, and criticized by others for offering the rewards in his famous “wanted dead or alive” proclamation. In 1885, following his term as governor, he moved to Kansas City and opened a new law firm. He was appointed United States consul general to Mexico by President Grover Cleveland in 1893 and served for four years before returning to Kansas City. Crittenden died unexpectedly in Kansas City on May 29, 1909.
John Finis Philips
John Finis Philips (1834-1919)
Philips was born on December 31, 1834, in Boone County, Missouri, the last of eleven children. After attending the University of Missouri, he graduated from Centre College, in Danville, Kentucky, in 1855. He joined the bar in 1857 and developed a large practice in Georgetown, Missouri.
At the beginning of the Civil War, Philips recruited the Seventh Missouri Cavalry and was commissioned as a colonel in the Union Army in May of 1862. After displaying considerable courage in combat, he was nominated as a brigadier general but never confirmed by the General Assembly. 
Following the war in 1865, Philips moved to Sedalia and formed a law partnership with a former Confederate senator and soldier, George Graham Vest. He became active in Democratic politics and unsuccessfully ran for Congress in 1868, but won election in 1874. 
Failing to be reelected to Congress in 1880, he used his considerable connections to obtain judicial positions. In 1882, Philips received an important appointment as commissioner of the Missouri Supreme Court, followed by an appointment by friend and fellow Democrat, Governor Thomas Crittenden, as one of three judges to the newly-formed Kansas City Court of Appeals. 
With an appointment by President Grover Cleveland in 1888, Philips became judge of the United States District Court for the Western District of Missouri. After twenty-two years on the federal bench, Philips retired in 1910 and resumed a law practice in Kansas City until his death on March 13, 1919. 
Senator George Graham Vest
George Graham Vest (1830-1904)
Vest was born in Frankfort, Kentucky, on December 6, 1830. He graduated from Centre College in 1848 and received a degree from the law department at Transylvania University in Lexington, Kentucky, in 1853. Shortly after graduating, he headed out west by stagecoach. 
En route to the coast, the stagecoach wrecked at Georgetown, Missouri, and Vest suffered a broken arm. While recuperating, he defended a slave accused of murdering a mother and her children and though acquitted, the slave was lynched. Vest was warned to leave town, but decided to stay in the small Pettis County town and begin his successful legal career.
By 1856, Vest moved to Boonville and became active in Democratic Party politics. He was elected to the Missouri House of Representatives in 1860 and served there until late 1861 when he wrote the resolution calling for the state convention to determine Missouri’s future in the Union. 
As an outspoken advocate for secession, Vest aligned himself with the South. In 1861, he fought at the Battle of Wilson’s Creek and the following year was elected to the Confederate Congress where he served until 1864, when he was appointed to the Confederate Senate.
When the war was over, Vest came back to Missouri and started a law practice in Sedalia. He chose as his partner John F. Philips, a former Union soldier. In 1870, Vest represented Charles Burden whose hunting dog had been killed by a neighbor. Vest’s closing remarks made no reference to the trial details, but instead eulogized a dog’s unconditional love for its master. The case was won and Vest became famous for his classic speech.
In 1876, Vest ran for governor, but was defeated because of his Confederate record. After moving to Kansas City, he was elected by the legislature to the U. S. Senate in 1879. During Vest’s twenty-four years in the Senate, he became known for his skills as a debater and an orator. He is also credited with saving Yellowstone National Park for the government and fighting to see it protected, along with urging reform in the treatment of Native Americans. 
Because of poor health, Vest retired from public life in 1903 and lived at his home in Sweet Springs, Missouri, until his death on August 9, 1904. 
press photo from 1958 featuring You're A Liar, Lon Hornsby! Charles Burden makes the accusation in circuit courtroom in the dramatized version of the dog trial held in 1870 in Warrensburg, Mo. Burden (standing at right) faces Hornsby, who has just stepped from the witness stand after protesting that dogs had killed his sheep like butcherin' varmints. Jurors (left) and witnesses (seated at right) lean forward with anxiety as the men lunge at each other moments later in a violent interruption of trial procedure. Burden is played by Edwin Cape, Fayette, Mo.; Hornsby, by Marty Rogoff of Kansas City, Kansas.

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