General McCook was unarmed; the wagon in which he was riding as fast against a bank by the roadside; he had just risen from the be don which he was being transported, and with nothing on him but his shirt and drawers, stood with his hands raised above his head in the full view of the prisoner when he fired the shot which caused the death. What more emphatic and obvious signal of an utterly defenseless and helpless condition and of unqualified surrender could be made? The claim that the prisoner did not discover these signals and did not know that General McCook had surrendered probably received the due consideration of the court. There was no evidence which supports or admits this claim. The spirit which possessed Gurley and which actuated him on that day is shown by the testimony of the man Aug and Captain Brooke. Aug swears that after firing at him and seeing him lying on the ground, he cried out to his followers, "There he lies; kill him," and rode on at a rapid rate. A few hundred feet in advance of Aug was General McCook, in his ambulance, standing up as described, and Captain Brooke testifies that he heard no order to had, but heard something about "Yankee sons of bitches; " and Gurley, after having fired three shots, the last being the fatal one, passed by at full speed without stopping to learn who he had shot or who had surrendered.
The conclusion is unavoidable that Gurley had no thought of capturing prisoners, but was determined on nothing less than taking life. General Thomas, in his indorsement recommending mitigation on account of the peculiar circumstances of the case and the previous subsequent good character of Gurley, does not express an opinion that the act was justified. The proof of general good character consists in the expressed opinions of men who were acquainted with Gurley and believed him to possess an amiable disposition and capable of doing kindness to those opposed to him. Such testimonials are without weight in a case of this character. If the killing of General McCook was justifiable, Gurley should not be punished. If it was unlawful, he not having been punished by his own authorities before his capture, according to the well-established laws of war, remains answerable for his crime and should suffer the full penalty provided in such cases. The law upon this point is stated in paragraph 59, General Orders, Numbers 100, dated April 24, 163, in these words:
A prisoner of war remains answerable for his crimes committed against the captor's army or people, committed before he was captured, and for which he has not been punished by his own authorities.
The court had all the facts submitted for their consideration, and the law was fully and ably discussed by the counsel for the prisoner and the judge-advocate. It was decided that the crime was murder, and that the death penalty was merited, and no reasons are presented by a review of the trial why the judgment of the court should not be confirmed. Transmitted with the record are several letters purporting to be from rebel officers, forwarded to Major-General Grant, which will be found inclosed herewith. They are as follows: First, a letter from a person who signs himself Lieutenant-Colonel Hambrick, in which it is stated that Gurley was authorized by Kirby Smith to raise a company to operate in the vicinity of Madison County, Ala., and that on the occasion of General McCook's death he had reported to him (Hambrick), and was with him when General McCook's party was attacked, and that a volley was fired because he (General McCook) would not halt when ordered; that he had not surrender when shot, and that he (Hambrick) and Gurley did not know the man riding in the ambulance.