Gurley being within a short distance and having commenced firing at them, the driver of the ambulance was directed to stop, and to do this at once he drove the horses against a bank of the roadside. Gurley was in advance of his men, and just before coming in sight of the ambulance he fired at a sutler named Aug, who thought not wounded fell from his horse, and the accused cried out to his followers, "There he lays; kill him; " and rode on at a rapid rate. When within about 100 feet of the ambulance he fired a shot which went wide of the mark. This was followed by another which perforated the coat of Captain Brooke, and when within about twenty-five feet of the ambulance he fired a third which struck General McCook and caused his death. Without stopping his horse the prisoner galloped on and was lost to view. That night Captain Brooke, who was taken prisoner, saw Gurley when he came into the rebel camp and recognized him as the man who killed General McCook. Gurley admitted that he shot the man in the ambulance, but without knowing who it was at the time, and said he shot him because he did not halt when ordered, and that he would do the same thing again. Captain Brooke testified that he heard no order to halt, the only words that reached his ear being something about "Yankee sons of bitches. " It was fully established that on the day he killed General McCook, Gurley and the men under him were dressed in citizens' clothes. As to the character of the organization, Captain Brooke testifies that during the twelve days while he was a prisoner in their hands he saw men join this band of rangers, and the only form of enlistment he observed was that men would be told "go and get your gun and come along. " He also states that men would lee camp at night and go, as he supposed, to their homes, returning in the morning, and that in a conversation with the accused and another rebel officer, Captain Hambrick, the latter remarked that Gurley and the men under him received no pay, subsisted themselves, and reported to no one, and the accused expressed no dissent from this statement.
On the part of the defense it was proved that the accused enlisted in September, 1861, in a regiment of cavalry known as Kelley Troopers, and that in May, 1862, his name was dropped from the rolls, and he was accounted for as promoted to captain. It appears by General Rousseau's testimony that some time previous to the date when General McCook was killed he took some of Gurley's men prisoners and regarded them as guerrillas, and that their friends furnished him with a paper purporting to be an order from the rebel General Kirby Smith appointing Ruely a captain, and authorizing him to recruit a company of partisan rangers, which order General Rousseau believed to be genuine; and being told by very good people that Gurely's men were not guerrillas, he allowed them to take the oat hand be discharged, and his action was sanctioned by General Buell. A Mr. Gentry, who was a member of the rebel Congress in 1862, testified that a law was passed in April of that year authorizing the organization of bands of partisan rangers, the offices to be appointed by the President and the men to receive the same pay and allowances as other soldiers in the rebel service, and in addition be paid the full value of any arms and munitions of war they captured and turned over to quartermasters. The law will be found set forth in full in the printed copy of the argument of the prisoner's counsel. Lieutenant King, a rebel officer belonging to the Fourth Alabama Regiment, to which the accused with his company was attached in November, 1862, stated that Gurley drew pay as a captain from the 20th of May, 1862, and that his men were formally enlisted into the service; but his testimony appears to be based on