The Boy Nevada Killed

by Janice Oberding

“What if anything was said at that time?”

  Wines spoke loudly, “Objected to, if your honor please, on the ground sufficient foundation has not been laid.”

  “I think that is right,” Judge Dysart said. “This witness has testified that the defendant was under arrest and nobody informed him as to his rights. Did you hear Mr. Guidici tell this boy that he was under arrest yourself ?”

  “Yes, sir.”

  Wright asked, “Was that before or after the conversation?”

  “Before.”

  “Have you read over your testimony at the previous trial?”

  “Yes, sir.”

  (The official transcript does not contain an objection to the question; however, Wright’s next statement seems to indicate that one may have been made.)

  “I just want to know if he had refreshed his memory.” Wright said.

  Dysart said, “You can find that out. If you have been taken by surprise, you can show it.”

  “Do you recall the type of gun that was taken from the defendant?”

  “Yes, sir.”

  “What type please?”

  “It was a thirty-eight caliber, U.S. printed on it, and also the serial number.”

  “Do you have the serial number?”

  “Yes, sir.”

  “Do you have it in your possession now?”

  “Yes, sir.”

  “Will you kindly tell us—first, let me ask you, when did you get that serial number?”

  Alexander nodded toward Floyd. “Immediately after taking it off this boy.”

  “Where?”

  “On the highway.”

  “Are you positive it is the same gun you took from the defendant? The serial number you took down, did it come from the same gun you took?

  “Yes, sir, that is where I got it.”

  “I show you State’s Exhibit Number One and ask if you can identify that?”

  “Yes, sir, that is the gun.”

  Floyd could feel the jury’s eyes bearing down on him. Avoiding their eyes, he stared sullenly into space, wishing himself anywhere but here.

  “Are you positive in your identification that the defendant here, Floyd Loveless, is the same person you saw there on the highway?”

  “Yes, absolutely.” Anderson said, staring at Floyd.

  Wright stepped away from the witness stand. “That is all at the present time.”

  Taylor Wines spoke to Floyd and then approached the witness stand. After a few questions about the time of day the arrest took place, he asked, “Do you know what sort of weapon, if any, Mr. Aiazzi had with him?”

  “No, I don’t.”

  “Do you know if he had any?”

  “No.”

  “Do you know if Mr. Goicoechea had a weapon, a firearm?”

  “I wouldn’t say.”

  “Did Mr. Guidici?”

  “Yes.”

  “However, you were the first person to reach Floyd Loveless?”

  “Yes, sir.”

  “You were behind him?”

  “When I got out of the car I was facing him, but I immediately went behind him.”

  “At that time, you searched him and put him under arrest?”

  “Yes, sir.

  “How far from the western end of the construction work was it before you saw the boy?”

  “I am not sure, but I would judge four to five miles.”

  “Do you remember when you got there?”

  “Approximately 12:15.”

  “That is to the place where the boy was?”

  “Yes.”

  “That is all,” Wines said.

  Aside from the two deceased deputies, several witnesses had left the area. Elko deputy sheriff Bill Critchley was called to testify to the attempts that had been made to locate all the witnesses.

  Wight asked, “You are a deputy sheriff of the county of Elko, state of Nevada?”

  “I am.”

  “How long have you resided in this county and state?”

  “Since 1896, with the exception of about ten years.”

  “Sometime in the month of November 1943 did I place in your hands a subpoena for certain witnesses?”

  “Yes,” Critchley said, “you did.”

  “Did the subpoena call for the subpoenaing of the—will you kindly name the witnesses please?”

  “David, Brown Wilsey, Ed Kendrick, Rodney S. Williams, Dale Cline, Louis Stilson, Glade Peterson, S.L. Mendenhall, A.B. Madsen, Arthur O’Brien, R.P. Roantree and C.A. Harper.”

  “Has a subpoena been served on Louis Stilson?”

  “No, we were unable to find Louis Stilson in the county.”

  “What, if anything, did you do to find Louis Stilson?”

  “We sent a letter to his former employer, W.W. Clyde, to get his last address.”

  “Did you have a reply from W.W. Clyde, his employer?”

  “Yes, we had a reply from Mr. Clyde here on November 6.”

  “What information did you have as to the present whereabouts of Louis Stilson?”

  “If the court please, I object to that on the ground any information which the witness can testify to now is merely hearsay by means of a letter, and he has no means of identifying it. It would be secondhand evidence.” Wines said.

  “He can show what efforts he made to locate him.” Judge Dysart said.

  “Yes,” Wines said, “he has testified he sent a letter to W.W. Clyde in order to get a reply from him, but he can’t state the contents.”

  Judge Dysart saw it differently. “He can state what information he obtained. The objection is overruled.” He turned to Critchley. “You can state what information you obtained as to where this witness was.”

  “His last known address was Springfield, Utah.”

  “Well, I haven’t a copy of it here,” Wright said.

  “Do you recall whether you did or did not mail such a letter?” Judge Dysart asked the witness.

  “No, I don’t recall, Your Honor.”

  “Well,” Wright said, “I will ask you, pending the location of that letter, these others. Did you do anything to ascertain the present address of Glade Peterson?”

  “Yes, we notified and served him by registered mail, and we have a reply back from his stepfather that he don’t know where he is at.”

  “Did you get information concerning his present whereabouts?”

  “Yes, we have a letter.”

  “What is the information as to his present whereabouts?”

  “He is at Camp Tyson, Tennessee, serving his country in the armed forces.”

  And so it went; a number of witnesses who had testified at Loveless’s first trial would not be in court. Their testimony from the previous trial would be read.

  Critchley was excused, and Dr. David Brown Wilsey took the stand.

  “Dr. Wilsey, on August 20, 1942, did you have occasion to see Officer Dolph Berning?”

  “Yes, sir, I did.”

  “Where?”

  “At the Elko General Hospital.”

  “About what time?”

  “Approximately eleven fifteen to eleven twenty in the morning.”

  “What was his condition at that time?”

  “As I have said previously from this same witness stand, he was a man particularly and acutely ill following a gunshot wound in the front part of the neck, which had in the course of the bullet passed through the vertebrae of the neck region severing a great part of the spinal cord, thereby causing, as related to breathing, paralysis and the like, along with some factor of—”

  “I ask that the answer be stricken. The witness has not been qualified as an expert,” Wines said.

  “Dr. Wilsey, are you a practicing physician and surgeon?” Wright asked.

  “I am.”

  “Where?”

  “Elko, Nevada, with the Elko Clinical Group, doctors Hood, Roantree and Secor.”

  “When were you admitted to practice in the State of Nevada?”

  “In 1941, May of that year I
believe.”

  “If the court please, I wish to offer in evidence the testimony of Dale Cline, which was given at the trial held on September 28, 1942, held in this court in this matter.”

  “That is objected to, if your honor please,” Wines said. “The proper foundation has not been laid. So far it has not even been shown that the transcript is the original in the matter, and it has not been shown sufficiently that Mr. Cline is out of state.”

  “It might be well to ask. I haven’t started to read it yet, but I can identify this transcript,” Wright answered.

  “As far as Mr. Cline is concerned, I think you showed positively that he is out of the jurisdiction of this court, so as to that the objection is overruled. You will have to identify that as the original transcript,” Judge Dysart said.

  “May I call Mrs. Caine in this connection, please?” Wright asked.

  Dysart answered, “I think the statutes provide that if the court reporters certificate is on it that it can be used by either party and read in evidence.”

  Mrs. Mae E. Caine, county clerk of Elko County, was called to testify that she had certified the correct judgment roll, notice of appeal, transcript and bill of exceptions. Mrs. Caine also testified to the legitimacy of the signature of court reporter Elizabeth Smiley on the documents.

  “And,” asked Wright, “this is the original transcription and record of the former case, is that correct?”

  “Yes,” Mrs. Caine answered.

  As she stepped from the witness stand, District Attorney Wright said, “Just a minute, if the court please. I am informed that a United States Marshal is on the phone and he would not be able to get Cline here until Friday. If it is necessary for him to be brought here that is the first date, and he is on my phone now.”

  “That is entirely too late,” Judge Dysart said. “We can’t keep this jury waiting.”

  “Tell him that the trial is in progress, and we can’t hold the trial over,” Wright said to his assistant. “If the court please, may I read the testimony of Dale Cline, which commences on page thirty-eight, line twenty-four, in the transcript of the former trial commencing September 28, 1942?”

  “May we have a stipulation if your honor please, that the objections taken during the progress of the testimony shall be automatically taken as he reads this time in order to prevent my interrupting him when I would ordinarily make such objections?” Wines asked.

  “You mean your objection to any part of it?” Wright asked.

  Judge Dysart said, “He asked that any objections he has made—”

  “That will be stipulated,” Wright said.

  “And,” Wines said, “if there are any further objections I shall state the grounds.”

  “Very well,” Judge Dysart said.

  Storm clouds had blown in from the northwest, lending an ominous appearance to the courtroom. Wright cleared his throat and began reading Dale Cline’s testimony. Listening to Dale’s words, Floyd thought of the day, which seemed so distant now. Jurors looked at the district attorney and then at Floyd. Wright finished reading and placed the papers on his table.

  “If the court please, at this time I desire to offer in evidence the testimony of S.O. Guidici, commencing at page fifty-six of the transcript of testimony at the trial of September 28, 1942, on the grounds that he is now deceased.”

  Judge Dysart looked at the jury. “Would any of you gentlemen like to have a few minutes recess, or would you like to go on?”

  “We might take a five minute recess,” Wright agreed.

  On November 27, 1943, Taylor Wines filed a written motion for a new trial and motion in arrest of judgment in Elko.

  That same day, in Carson City, thirty-four-year-old Floyd McKinney was executed for murdering an Idaho couple in central Nevada. Because of his stoicism in the face of imminent death, newspapers dubbed McKinney “the gamest man ever to be gassed in the Nevada lethal cell.”

  Floyd Loveless’s motion for a new trial was denied on November 30, and he was once more sentenced to death.

  OLIVER CUSTER HUNG HIS overcoat on a peg. Settling into his chair, he unfolded the morning newspaper.

  His secretary knocked softly on the inner door. “Will you see Mrs. White and Miss Semenza?” she asked.

  He thought a moment and asked, “Is this about the Loveless boy?”

  “It is.”

  “Show them in,” he said, pushing the newspaper aside.

  “Mrs. White. Miss Semenza.” He stood and motioned the two women to chairs that faced his desk. “Please have a seat, ladies. Would either of you care for a cup of coffee?”

  “No, thank you,” Miss Semenza said.

  “Not for me, thank you,” Mrs. White said.

  He turned from the desk and filled his cup from the office percolator. Steam rose from the cup. “With sugar rationing, I’ve gotten used to drinking mine black.”

  The women nodded knowingly. After a cursory discussion of the weather, Mrs. White began. “We won’t take a lot of your time Mr. Custer. As I told you last week, we represent a group of ladies who are most interested in saving the life of this boy.” She waved a gloved hand at the other woman. “Miss Semenza, as you may know, is the Child Welfare Director.”

  Custer smiled and nodded. “Yes we’ve met.”

  “As I understand it, Mr. Custer, you are somewhat familiar with this case?” Miss Semenza asked.

  “Somewhat,” Custer agreed. What he knew, he had read in newspaper accounts of the second trial.

  “It’s terrible what is happening with this boy,” Mrs. White said. “He needs our help. So we’ve come to ask you to represent him in an appeal to the Supreme Court.”

  “I don’t know ladies—”

  “Many prominent people are interested in this child’s case, Mr. Custer,” Mrs. White said.

  He sipped his coffee. “I’m sure. However, I couldn’t get involved until—”

  Mrs. White interrupted, “I believe I can raise enough money to pay your attorney fees if that’s what’s bothering you.”

  ‘It’s not that,” Custer said. “Mr. Taylor Wines is the boy’s attorney. I would have no right to enter the case unless he was withdrawn.” He turned to the other woman. “Miss Semenza, I suggest you write to Mr. Wines and ask him about the status of the case.”

  She smiled. “I will write to him this afternoon.”

  The women stood, and Custer shook their hands warmly. “I look forward to hearing what Mr. Wines has to say.”

  After they left he took out his notepad and scribbled a reminder to himself. The plight of the youngster sitting on death row had grabbed his interest. Whether or not he could help the boy was another matter.

  Taylor Wines turned to the second page of the newspaper and read an editorial in the December 14, 1943 Thursday edition of the Elko Daily Free Press:

  A group of Reno women are reported to be interested in saving Floyd Loveless, killer of Constable A.H. Berning, from death in the Nevada gas house. He is 17 years of age. They are interested in saving him because of his youth. This might be a commendable attitude if Floyd Loveless was some other 17 year old youth and if his record was different that it is. This cold blooded killing of Constable Berning by Loveless would be considered cause enough by most people for his execution. If that wasn’t enough there is his past record, which became part of the record at his first trial here. His record shows a life of crime, one flagrant example being the holding of a woman at the point of a gun while he raped her. Loveless does not deserve to live. Nothing beneficial can be accomplished by saving him from death, with the possibility that he may be turned loose upon the general public again. But these same women might be able to accomplish some good for humanity if they would exert their influence against juvenile delinquency. We are all prone to wait for disaster before acting. The thing we should do is to put our energies into a program which will avert juvenile delinquency—such projects as the ice skating rink now being sponsored by the city of Elko. The best tonic for any child i
s to keep him active and thus keep him out of trouble.

  Attorney Taylor H. Wines has announced that he intends to take the case to the Supreme Court for a review. He admits that there is little chance that the verdict of the jury trial will be reversed. However, Attorney Wines recognizes, as any reputable attorney must, that he has an obligation to his client, which must be fulfilled. It is only right that the law take its full course in the case of Floyd Loveless to see that justice is done.

  The editorial didn’t surprise him. He folded the newspaper and looked at the stack of mail on his desk. A long slender envelope with the return address of Oliver Custer caught his eye.

  He opened it and read with interest.

  Miss Semenza advises me this morning that she has received a letter from you in which you state that you are carrying an appeal to the Supreme Court of Nevada and that you would be glad to have me associated with you in the case.…I shall be glad to assist you in this matter and I shall await your further advises. I am looking forward with pleasure to meeting you for I have heard a great many complimentary things about you. With the seasons greeting, I am sincerely yours

  Oliver Custer

  Wines had another client facing a murder charge—with a large caseload. Custer’s offer to help with Floyd’s appeal was welcome news. He replied that same day.

  Dear Mr. Custer;

  Miss Grace Semenza has written me that several persons in Reno have interested themselves in the Loveless case, and have asked me whether I would desire to have you associated with me in the appeal of the matter. I have replied that I would be very happy to make such an arrangement and thought perhaps I should write directly to you and briefly familiarize you with the facts and points which I believe should be set out in an appeal.

  To begin with you should not be taken in by the newspaper story that Floyd is a confessed and convicted rapist since I have obtained information from the records in the East and compared them with the story which the boy gave the officers at the time he was arrested and they do not compare closely enough for a conviction. There is, for example, the fact that the lady was unable to recognize Floyd Loveless the next day and in a statement he very definitely said the lights were on, and at present I do not recall whether or not Floyd said he had a mask on or whether the lady said the person who assaulted her had a mask on, but any rate that is another particular in which the stories differ from the facts. Because where she testified that the person who assaulted her had a mask and Floyd said that he did not or vice versa. There are a number of other details which escape me at present showing that the boy is covering up for someone else. The past record of the boy shows that he has on occasion taken the blame for crimes committed by associates or his older brother.