The Boy Nevada Killed

by Janice Oberding

  Because lethal gas was untried, a test run was necessary. After testing the new gas chamber on a pair of hapless kittens, the state was ready for its first execution by lethal gas. On February 8, 1924, Warden Denver S. Dickerson looked on as Gee Jon walked into the gas chamber, sat down and started crying. It was little comfort that long after his death, Gee Jon would be remembered as the first person so executed in the United States. According to Warden Dickerson, the job was done by four pounds of hydrocyanic acid gas into a chamber eleven feet long, ten feet wide and eight feet high, in which the condemned had been strapped to a chair.

  In his report to the governor and the legislature, Dickerson said, “This method of execution, while no doubt painless, is not, in my judgment practical.…The real suffering of the condemned, regardless of the manner of inflicting the death penalty, is endured before the actual infliction of the penalty.”

  Four years later, Bob White went to trial in Elko for the murder of local gambler Louis Lavell, whose charred corpse was discovered on property leased by White; their dispute was over money. White was convicted and sentenced to die. Traditionally, the condemned is asked about a last request. On June 2, 1930, just before the chamber door closed on Bob White, the warden asked him if he had a last request.

  Pragmatically, White answered, “Why yes. I’d like a gas mask.”

  That same year, convicted serial killer Carl Panzram seemed to be in a hurry to get to wherever he was going. He stunned onlookers at Leavenworth federal prison when the executioner slipped the noose around his neck and asked if he had any last words.

  Actual chair that was used in executions at the Nevada State Prison gas chamber. Photo courtesy Mob Museum National Museum of Organized Crime and Law Enforcement (Las Vegas) and Nevada State Museum (Carson City).

  Panzram did. “Hurry it up, you Hoosier bastard. I could kill ten men while you’re fooling around!” he said.

  When he walked into the Nevada gas chamber in June 1937, convicted murderer Luther Jones was asked if he had a last request. “I’d like to take the sheriff with me,” he said. Jones, who had coldbloodedly murdered four Elko County men, was playing cards in Carlin when his pistol fell from his pocket. Notified of the firearm, Constable Berning attempted to arrest Jones, who balked. Bar patrons jumped in to help Berning subdue Jones. And off to the Elko County jail he went. En route, Jones asked Constable Berning what Nevada’s method of execution was. Berning told him the state used lethal gas but couldn’t get the strange question out of his mind.

  While Jones languished in jail, authorities discovered he’d been busy bouncing checks in Elko. They were about to make a grislier discovery concerning Jones. After Berning told him about Jones’s question concerning capital punishment, S.O. Guidici questioned Jones about three missing ranchers. It didn’t take long for Jones to tell Guidici where to find the bodies; the deceased were three well-liked local men and an old man who happened on the crime. Elko was outraged. With talk of lynching growing louder, Judge Dysart realized the necessity of a speedy trial.

  Original spectator chairs, in use since 1911, in the Elko County Courthouse. Photo by Bill Oberding.

  Local attorney C.B. Tapscott was assigned as Jones’s defense counsel by Judge Dysart. Tapscott let it be known that he wanted no part of defending the man, even if it meant a contempt of court charge. In the end, Jones stood trial with Tapscott as his counsel. He was found guilty and sent to the Nevada gas chamber.

  On September 28, 1942, the early morning sun shone across the Elko County Courthouse, lending an almost surreal glow to the building. Floyd didn’t notice. After breakfast, he was hurried out of the jail, through the back door and up the stairs to the courtroom.

  Judge James Dysart as a young man. Photo courtesy of Northeastern Nevada Museum.

  Those Elkoans who came to see Floyd Loveless’s trial sat in straight-backed chairs that were original to the courthouse. Townspeople were anxious for this trial. Most recently, Luther Jones had stirred up community sentiment by murdering four of its own. But not since March 1925, when Mexican immigrant Guadalupe Acosta shot Deputy Sheriff Charles Lewis, did a trial involve the murder of a member of law enforcement. Racial tensions had run high. An angry lynch mob, demanding Acosta, gathered outside the jail. The lynching was prevented when seventy-five of Acosta’s countrymen armed themselves and surrounded the building. And Acosta got his day in court. The jury found him guilty and sentenced him to death. But Acosta was fortunate. He was one of the few people whose death sentence was commuted to life imprisonment.

  Judge James Dysart. Photo courtesy of Northeastern Nevada Museum.

  District Attorney C.B. Tapscott scanned his notes. A former Nevada state assemblyman, high school teacher and principal of Virginia City High School, Tapscott was ten years older and more experienced than his opposing counsel. This was his advantage. Both sides sat at the same long table. Tapscott looked at the defendant and his court-appointed attorney, Taylor Wines, who seemed unaware that Tapscott was watching them.

  Spectators noisily jostled their way into district court judge James Dysart’s courtroom. This was their community. They had read the newspaper accounts of Constable Berning’s killing and of Loveless’s confession to Sheriff C.A. Harper. Now they wanted to catch a glimpse of the murderous boy from Indiana.

  News media were there to cover the trial of Floyd Loveless, who had the distinction of being the youngest person ever tried for a capital offense in Elko County. Constable Berning’s family was not in the courtroom. Fifty years later, Berning’s daughter Peggy Woods said they had not read the newspaper accounts of the killing or of the trial.

  The jury (all male) was selected from a list of fifty-eight names from Elko and Lamoille, Ruby Valley. They were sworn in, and the trial was underway.

  The state’s list of witnesses included Dale Cline, who would testify to his and Floyd’s escape from Plainfield and their subsequent cross-country crime spree; the traveling salesman who chatted with A.H. Berning while he waited for the stolen Studebaker; the four deputies who had apprehended Floyd on Highway 40; and Drs. Wilsey and Roantree, who cared for A.H. Berning when he was brought into the Elko General Hospital. The prosecutor had proudly informed the newspaper that an FBI expert who would testify about the impossibility of Floyd’s story was also scheduled.

  Up first was Dr. David Brown Wilsey.

  “The cause of death, can you tell us what that was?”

  Courtroom as it appeared at the time of Floyd Loveless trial. Photo courtesy of Northeastern Nevada Museum.

  “The cause of death was a composite, namely, the shock factors; the infection factors from the course of the bullet; number three would be the paralysis factors or improper—”

  Tapscott stopped him. “In simple terms, what would you say the primary cause was?”

  “[The bad damage] that had been created by the bullet namely is confined to the spinal cord region.”

  Courtroom during an actual trial. Photo courtesy of Northeastern Nevada Museum.

  “And then was an autopsy performed?”

  “Yes, sir, I did it.”

  Elko County Courthouse as it appears today. Photo by Bill Oberding.

  “Did you ascertain the exact course of the bullet?”

  “Yes, sir, I did, at the Arnold Mortuary, while Dr. Roantree stood by.”

  “What did you observe as to any bullet wound?”

  “The primary investigation showed the man to have the powder buns from the bullet hole in the upper line zone of the neck, which had traversed backwardly, smashing into the front part of the body on the fifth cervical vertebra. As it went through, it caused a severing of the spinal cord almost as complete as if it had been done with a knife. The bullet then continued its path and was lodged in the tissue in the nape of the neck.”

  Floyd grimaced inwardly as Berning’s injuries and death were explained.

  “And the bullet was from where?” the district attorney asked.

  Dr. Wilsey pointed to his d
iagram. “Approximately there.”

  “So the path was somewhat downward?”

  “Slightly so,” the doctor answered.

  Floyd looked at the jurors, who listened intently to the witness.

  Taylor Wines stood, straightened his tie and strode toward the witness stand. “Did Mr. Berning talk rationally?”

  “Yes, sir, I would say he did.”

  “And you say the course of the bullet was downward?”

  “Slightly so.”

  “There was nothing on which the bullet struck which caused it to go down?”

  “Not on entering the body. It was probably given that downward course by contacting the rather firm bony vertebral body.”

  “Is it possible the barrel of the gun was pointed up or down?”

  “Yes, sir, but as I understood your questions, you said upon entering the body.”

  Wines finished his cross-examination, and the clerk called Dr. Roantree to the stand.

  After preliminary questions, the district attorney asked. “Doctor, in the past, as doctor, physician or surgeon, did you see Mr. Dolph Berning on August 20, 1942?”

  “I did.”

  The questions and answers continued, but Floyd was barely listening. If only he could go back and live that day over again. If he could, he would be in Indiana; even Plainfield, with its harsh punishment, was better than this.

  “Do you think that the death was caused by anything else other than the gunshot wound?”

  “No, I do not.”

  “Was Mr. Berning able to talk?”

  “Yes, he was.”

  “Do you recall seeing Warren Monroe at the hospital?”

  “Yes, sir.”

  “What was Officer Berning’s condition at that time?”

  “I believe that was shortly after he was brought in. He could talk with some difficulty because of the blood in his throat, but mentally he was perfectly clear.”

  Floyd remembered the blood in the man’s mouth and closed his eyes.

  “Would you say that it was reasonably certain at the time Warren Monroe was there that Officer Berning knew that he was about to die?”

  “I think he probably had a very good idea because he had acted as ambulance driver in a very great number of cases, and he realized he was paralyzed from the neck down.”

  “May I have this one packaged opened, please? I hand you what purports to be two leaden bullets, see if you can identify either or both of those objects.”

  The bullets—they were bringing out the bullets, Floyd thought. Realizing the jury was staring at him, Floyd kept his face a mask.

  “Yes, those are the bullets,” Dr. Roantree answered.

  Judge Dysart said, “The two bullets will be admitted in evidence as State’s Exhibit Number Two.”

  Taylor Wines was ready. “Are you certain that Mr. Berning knew his situation at the time he was brought to the hospital?”

  “No.”

  Rodney Williams testified that he was chatting with Officer Berning about the stolen Studebaker when it pulled up. Berning told the driver he would have to take him in. When asked if the car’s driver was in the courtroom, Williams pointed to Floyd. He then told the court that when he was about a half mile away, he looked in his rearview mirror and saw the passenger door of the Studebaker being closed from inside.

  Dale Cline surprised onlookers as he approached the witness stand. Sixteen years old, he could easily have passed for a much younger boy. He glanced at Floyd and quickly looked away.

  Tapscott was brusque. “State your full name.”

  “Dale Harold Cline.”

  “Before coming to Nevada, where were you living?”

  “Indiana Reformatory.”

  “How long had you been there at the reformatory?”

  “Two weeks.”

  “At the time of your leaving, who, if anyone, accompanied you?”

  “Floyd Loveless.” Dale glanced at Floyd who kept his eyes downward.

  Tapscott continued questioning him until he came to the moment the two boys had left Elko.

  “Who left town first?”

  “Floyd did.”

  “Which direction did he go?”

  “West.”

  “What did you do after he left town?

  “I got in the Buick and followed.”

  “Did you get sight of him any place?”

  “No, sir, not until we got almost to Carlin.”

  “Now, Carlin is—you refer to the first town west of here?”

  “Yes, sir.”

  “About how long did it take you to get up there, Dale?”

  “Oh, just about twenty minutes—fifteen or twenty minutes.”

  “About what speed were you driving after leaving Elko?”

  “Seventy-five.”

  “When you arrived at Carlin, tell the jury just what you saw at the time you first saw Floyd there.”

  Dale turned toward the jury. “I caught up with Floyd before we got to Carlin, and I was driving right back of him and going along. And a red coupe, I believe it was, pulled up, and this constable got out of it and flagged Floyd down. And I stopped right behind him, and the red coupe drove away, and this constable waved me around him and told me to go on.”

  “You are speaking of a red coupe. Are you sure that the constable you speak of got out of the red coupe or just talked with the man in the red coupe?”

  “I am not sure. He was standing there when we drove up.”

  “The red coupe you speak of drove away?”

  “Yes.”

  “That’s while you were standing there?”

  Dale didn’t answer.

  “Did you identify the man, see the man, who was in the red coupe and drove away?”

  “No, I don’t think I did.”

  Interestingly, Dale Cline was a state’s witness whose testimony corroborated Floyd concerning his struggle with Constable Berning. Yet the state contended there had been no such struggle. Floyd, the state maintained, shot Constable Berning while he stood outside the passenger door. Tapscott took his witness to the time Berning waved him on.

  “How far beyond were you when you looked back?”

  “I am not sure.”

  “Tell the jury what you saw when you looked back.”

  “I saw Floyd and the constable wrestling around in the car, fighting or something. That is all I seen. I turned around and drove on.” He looked at Floyd, who glared back at him.

  On cross-examination Taylor Wines asked about Plainfield Reformatory.

  “Did you have any reason for wanting to escape?”

  “I didn’t like it there.”

  “Was there any particular reason, any punishment or anything, that made you want to escape?”

  “Well, I was afraid of getting a licking, but that isn’t the main reason I escaped.”

  “What was the licking?”

  “An ordinary licking.”

  “What did they lick you with there?”

  “Leather strap.”

  “Would you describe it for us?”

  “Five inches wide, a quarter of an inch thick and about three foot long.”

  “And was that all there was to it?”

  “About all. It had a wooden handle, and I think it had wood on the other side, too.”

  “Who used this strap on these boys?”

  “The supervisors.”

  “What did you do it for, what kind of infractions?”

  “Just for punishment.”

  “Did they do it for everything, or was it only resorted to—”

  “Just certain things.”

  “Just certain things. Did they do it very often?”

  “Quite often.”

  “Did you ever see any boys who had been licked that way?”

  “No, sir. I was right outside the building when it was going on though.”

  “Did they scream?”

  “Some of them,” Dale answered.

  Wines moved on. Cline was obviously uncom
fortable.

  “Did you have any plans of any particular place you were going when you left the reformatory in Indiana?”

  Dale looked at the Floyd and said. “California.”

  “Where were you going in California?”

  “No certain place.”

  “No certain place. Isn’t it true that you were supposed to go to California and stay in a cabin with you friends?”

  “I haven’t got a cabin at my friends. I was going to Santa Monica to get a job.”

  Wines took him to the morning of the shooting. “Floyd left town ahead of you?”

  “Yes, sir.”

  “How fast did you say he was traveling?”

  “Sixty-five or seventy.”

  “How fast were you traveling?”

  “I was traveling about eighty. I was going faster than he was.”

  “How fast were you traveling when you came into Elko?”

  “I don’t know. We wasn’t going very fast then.”

  “I didn’t hear you.” Wines stepped closer to the witness stand.

  “We wasn’t going very fast then,” Cline repeated. “We slowed when we got to the city limits.”

  “I mean before you got to the city limits. How fast were you traveling before you got there?”

  “Close to ninety.”

  After having Dale draw a diagram of the position of the three cars, Wines showed it to Tapscott and the jury.

  “You drove up behind Floyd?” he asked.

  “That’s right.”

  “And he was parked this side of the road?” Wines asked, pointing to the diagram.

  “Right-hand side.”

  “Was there any other cars there?”

  “Yes, sir; the red coupe.”

  “Do you remember how close the red coupe and Floyd’s car were?”