hearsay and is not conclusive. He also stated that it was frequently the case that officers and men of the rebel army were not provided with uniforms, but dressed in civilians' clothing. It was claimed by the defense that sufficient evidence was adduced to show that the prisoner had regularly enlisted in the rebel army; was made a captain; that he was carrying on lawful warfare, and was entitled to be treated as a prisoner of war. It was also claimed that in the excitement of the moment the prisoner, riding at full speed, fired his shots in quick succession without observing the condition of the men in the ambulance, and without discovering the indications of surrender, if indeed such were made before the fatal shot was fired, and therefore his act should be regarded as without criminality.
As to the military status of the prisoner it is observed that he was not a soldier when he shot General McCook, for his name was dropped from the rolls of his company three months before. He was not an officer under the partisan ranger act, for that act expressly provided that the officers should be appointed by the so-called President of the rebel Confederacy. Kirby Smith's order was the only commission claimed to have been received, and it was not shown that this was issued in conformity with law, or in any way authorized by the rebel Government. In view of these facts it may be held that Gurley was engaging in hostilities without commission from the rebel Government; without lawful authority, and without belonging to any organized force armed and unformed as soldiers. The laws of war treat such men as entitled to no privileges as prisoners of war, but as liable to be dealt with according to the circumstances of the case. It is laid down in the Code of Instructions for the Government of Armies of the United States in the Field, adopted by the President, and published in General Orders, Numbers 100, April 24, 1863, that men who commit hostilities, whether by fighting or inroads for destruction and plunder, without commission, without being a part and portion of the organized hostile army, and without sharing continuously in the war, but with intermitting returns to their homes, or with the occasional assumption of the character of peaceful pursuits, divesting themselves of the character or appearance of soldiers, are not public enemies, and may be treated summarily as robbers or pirates. The customary law of Europe, as set orth in First Kent's Commentaries, page 94, is that in a state of war, when subjects of one nation are in a state of hostility with those of the other, they cannot engaged in offensive hostilities without the express permission of their sovereign; and if they have to a regular commission as evidence of that consent, they run the hazard of being treated by their enemies as lawless banditti, not entitled to the protection of the mitigated rules of modern warfare. Governed by these laws, it certainly seems that Gurley may properly be held as a citizen, banded with other citizens for the purpose of robbing, plundering, and killing Federal soldiers and loyal citizens as alleged in the specification question as to whether Gurley was a soldier or officer, or not, there still remains sufficient proof of criminality in his killing of General McCook to warrant the finding and justify the sentence pronounced by the court. The law applicable to the case is laid down in Halleck's International Law, page 426, section 2. Referring to general rights of war as to enemy's person, and to the limitation of the right to take life, it is held that-
* * * While we may lawfully kill those who are actually in arms and continue to resist, we may not take the lives of those who are not in arms, or who, being in arms, cease their resistance and surrender themselves into our power.