The Boy Nevada Killed

by Janice Oberding

  I have prepared an application for commutation of sentence and have left it with Mr. William Harris, the Secretary of the Board, with instructions to file the same immediately after the Court at Elko resentences Loveless, I think it is preferable to file it at that time rather than file it now.

  I spent about forty-five minutes with Floyd and got his life story, which is a truly pathetic story. If he is executed, then the State of Nevada is punishing a child for the errors and omissions of his parents.

  Floyd said that he did not want to ask for commutation and that he would rather die in the gas chamber than live in the State Prison for the rest of his life. He is just like any other confused child about the whole affair. I finally persuaded him to sign the application.

  One of the deputy wardens at the prison, whose name I do not have, whom I have known for several years and found to be very reliable, told me that he had a talk with Judge Allen McFarland, Justice of the Peace at Elko, and that Judge McFarland took the same view of this case that you and I have taken and seemed very sympathetic toward the boy. The deputy warden also said that Miss Mary McNamara, the postmistress at Elko, is also sympathetic. I suggest that you talk with these people and if you think it advisable have them write letters to the Board of Pardons and Paroles expressing their views, or, if you believe you can get other persons in Elko County to sign a petition for commutation, that you see what you can do along that line.

  As soon as Mr. Harris files the petition, he will call me by long distance and arrange for a date for the hearing with the board. I think it will be very important for you to appear before the Board and testify as a witness on behalf of Floyd Loveless. You can testify along the lines which we have heretofore discussed. I believe that the Board would let you testify orally; however, if they will not, then you can make an affidavit.

  Mrs. White is circulating petitions asking for commutation at this time. I shall keep you advised of all developments. With kind personal regards, I am Sincerely yours.

  OH, THE MOONLIGHT’S FAIR TONIGHT ALONG THE WABASH

  Late Wednesday night, the phone rang at the Custer home. The news was not good. Oliver Custer’s brother was gravely ill in a Georgia hospital. The family needed Custer to come to Georgia as soon as possible.

  The next morning was Thursday, September 14, fifteen days before the Floyd Loveless execution date. Custer hurried up the stairs to his office. First, he would have Mrs. Parks make his travel arrangements, and then he must phone Governor Carville. He would also need to write to Taylor and let him know what was happening. He called the operator, gave her the governor’s number and waited.

  The conversation was friendly but brief. Governor Carville was, like Custer himself, a busy man. He put the phone piece down and wrote to Taylor Wines.

  Dear Taylor;

  Due to the serious illness of my brother, it is necessary for me to leave for Georgia tonight. I may be away from three weeks to a month.

  I talked with Governor Carville this morning on long distance and asked him to grant a reprieve of thirty days to Loveless. In other words, to reset the date of execution for October 29, 1944, in order that I would be certain to have returned from Georgia to appear before the Board of Pardons and Paroles. Governor Carville advised that at this time he could not grant a reprieve for thirty days, but that if I would telegraph him upon my arrival in Georgia, advising him when I expected to return, that he would grant a reprieve of thirty days, if necessary. In other words, he assured me that he would grant a reprieve of a reasonable length of time in order that I could return to Nevada to appear before the Board. Of course, if I find that I will be delayed in Georgia for a long while, then he would not grant a reprieve, but would set the hearing on the application for commutation for September 22, 1944, or certainly on a day before September 29, 1944.

  Due to transportation, it is impossible for me to know when I will arrive in Georgia, as it is three thousand miles to my destination. If it is impossible for me to return within a reasonable time, then I suggest that you wire Governor Carville and find out what the situation is and if he insists upon going ahead with the commutation hearing before September 29th and refuses to grant a reprieve, then it will be necessary for you to appear before the Board and plead for Loveless’ life.

  In that event, I suggest that you communicate with Judge L.O. Hawkins at Las Vegas by long distance and ask him to be present. Also, that you communicate with Mrs. Ed White of Reno and have her get Father Collins and all other interested parties to appear at Carson at the time set. Please emphasize in your communication with Mrs. White that she should bring all petitions which have been signed by various parties here. I regret that this has arisen, but I of course must go to my brother immediately. With kindest personal regards, I am sincerely yours.

  George Wright, the Elko district attorney, was also gearing up for the Loveless hearing. On September 16, he wrote a lengthy letter to the board outlining Floyd’s eighteen crimes. The eighteenth on his list was attempting to shoot it out with four armed officers. According to the testimony of the four men (Guidici, Goicoechea, Anderson and Aiazzi) who apprehended him, Floyd reached for his pocket when told to put his hands up. Floyd’s gun, however, was not in his pocket but in a front waistband.

  Wright wrote:

  Gentlemen

  Re: Application of Floyd Loveless

  After a thorough study of the facts of the case of the murder of Officer A. Berning on August 20, 1942 at Carlin, Nevada, by Floyd Loveless and his past record and his conduct during the two trials, it is my unequivocal opinion that he verdict of the jury and the death penalty is correct and the sentence should not be commuted to life imprisonment. I feel that his conduct since conviction is of little aid in determining the real merits of the matter.

  HISTORY

  The defendant was born on November 2, 1926 at Stockwell, Indiana. Since that time we have records and the confession of the defendant showing the commission of 18 major known crimes by the defendant, including burglary, robbery, by striking a woman with a milk bottle, rape by the use of a loaded revolver, attempting to shoot it out with four armed officers and a cold blooded murder wherein the defendant shot an officer, took him away from medical help and abandoned the officer to die…

  (18) August 20, 1942, 4 armed officers stopped defendant who was walking on the highway and after shooting of Berning. One of the officers had his gun drawn and told defendant to put up his hands. Defendant started for his gun but when told to put up his hands for the second time, complied-attempt.

  When S.O. Guidici was asked by Taylor Wines, “Did he [Floyd] make any threatening gestures?” Guidici testified, “No.”

  In describing the shooting of Berning, Wright wrote:

  The facts show Officer Berning to have been shot without warning and without a struggle. Berning could talk for over a day after he was shot and brought to Elko General Hospital. We therefore know how the shooting occurred.

  How could a right handed boy, smaller than Berning shoot Berning so that the bullet entered directly from the front and traveled in a downward course, if, as defendant claims, the officer was in the car and after a struggle occurred? This is a physical impossibility.

  We submit that defendant was in Indiana given a chance for rehabilitation first probation and then Reformatory but the defendant was not amenable to correction—he escaped one month after being in the reform school only to commit one of the most cold blooded murders of this County and took the

  life of a useful, well thought of citizen whose ability as an officer of the law was above reproach. This state has a declared policy of capital punishment and until the legislature changes this policy, we submit that this policy should control.

  Respectfully submitted

  George F. Wright.

  While Floyd’s attorneys fought to save his life, another battle was taking place. A battle to save Floyd’s eternal soul erupted on Saturday, September 16, 1944, when Reverend Frederick Busher attempted to visit Floyd a
t the prison in Carson City. Who would save the boy’s soul? The reverend took umbrage at what he saw as a slight and promptly wrote to the Governor Carville.

  Dear Governor Carville,

  I had a rather strange experience which I wish to bring to your attention. I endeavored to visit the Loveless boy today, at the behest of some of the interested citizens of Reno, who told me [he] was a Methodist and wanted to see a Methodist minister. I certainly wouldn’t waste gas and time without some sensible reason for a trip to Carson. However, I was told by Warden Sheehy that ONLY a Catholic priest could see the lad.

  It has been my privilege to visit many State Prisons and offer spiritual comfort to the condemned and never has the question been raised about denominational ties. Ordinarily our public institutions are open to the ministrations of the clergy regardless of faith. I am sure the Catholic Fathers feel free to visit and help Protestant boys, and I have many times done likewise for Catholic prisoners. In this case, however, I went to Carson on the direct appeal from a Catholic lady, Mrs. Ed White, who claims to have a letter in writing from the boy to effect that he is of Methodist background and would like to see a Methodist Minister.

  Regardless of the particular incident, however, it seems strange that a clergyman of a recognized church in the important city of a state should not at least be considered welcome in a public institution.

  Sincerely

  Reverend Frederick H. Busher

  After a phone call to Warden Sheehy, Governor Carville wrote to the reverend.

  September 21, 1944

  My dear Reverend Busher,

  Upon receipt of your letter of September 15th, I talked with Warden Sheehy in regard to the visit you made to the Nevada State Prison to see the Loveless boy.

  It is my opinion that you have misinterpreted the conversation you had with Warden Sheehy as well as the Warden’s policy toward denominational preferences of any prisoner. I know that the Warden and all of the attendants of the prison are always ready and helpful in obtaining spiritual aid for the inmates, through ministers and priests of the prisoner’s particular faith or choosing. This is especially true in those cases where a man is condemned to death.

  Floyd Loveless has been in the Nevada State Prison since October 7, 1942. A lady in Reno inquired from him some time ago what his religious faith was. He told her that his mother was a Methodist and I understand that this lady got in touch with you and suggested that you visit him. Several months elapsed and in the meantime, Floyd asked to see the priest who was visiting the prison. He was granted this request and has expressed his choice for the religion that this priest represents.

  As the date for execution has been set, Loveless is in the condemned cell now. Any citizen of this State or any other State would easily realize that very strict rules must be observed in a prison and particularly for those people who are being held under a death sentence. It is possible to allow only those people who are close relatives, legal councils and a religious council to see condemned men. I am certain if you were to check with any prison in the United States, you would definitely learn that a condemned man is allowed to have only one minister or priest of his own choosing to visit him.

  It is very possible had you visited Floyd Loveless when you first learned of the faith of his parents, that your services would be requested and continued visits would be expected and allowed.

  I am sorry that you made the trip to Carson City and found that your services were not needed but I am more particularly concerned with the attitude you have taken after that visit.

  There are no religious issues involved in affairs of the State. With particular reference to the Nevada State Prison, Warden Sheehy is a man of absolute fairness and with no prejudices. He would be the first to see that each man be allowed his own discretion in choosing his right to worship.

  With kind personal regards, I am sincerely yours

  E.P. Carville, Governor

  With his scheduled execution twelve days away, Floyd continued to correspond with those who had shown interest in his situation.

  Carson City Nevada

  September 17, 1944

  Dear Mr. and Mrs. White,

  I received your letter this afternoon and I’m glad to hear from you. The Catholic Priest was just here. Probably next week I’ll be baptized.

  No ball game today. I don’t think we’ll have anymore [sic] games this year.

  I heard from Mrs. Whitney day before yesterday. She is pretty busy. I sent her a picture like the one I sent to you. All my life I’ve liked to take pictures and have my picture taken.

  I heard from my Grandmother too. She has been busy too. Dad and Grandma would come out here but Dad can’t get the gas or tires. I think the trip would be to [sic] much for my Grandmother anyway. Dad and my uncle (one of them) was out here in 1942 to see me.

  All I can say if I don’t get a comute [sic] that it is a good feeling while one’s alive. You can’t kick after you’re gone. I have no hard feelings against anyone. What has happened has already put a different look on life. What I know of it. Life is a word with so much meaning. I have a lot to learn yet.

  Sincerely,

  Floyd Loveless.

  “Dad can’t get the gas or tires”—Floyd may not have been referring to the family’s lack of traveling money but to wartime rationing that included (rubber) tires and gasoline. Also discouraged was all nonessential travel. Visiting one’s son in a penitentiary across the country was probably not considered essential.

  Mrs. White read the sentence with disgust. No tires and gas were just an excuse for the boy’s father. She could not understand how any parent, knowing his child was on death row, would not make every effort to try to save him or at least come to him and spend some time with him. If he truly wanted to see his son, the elder Loveless would get on a bus and come to Nevada.

  She expressed her views in a letter to Governor Carville:

  September 19, 1944

  Dear Governor,

  I am enclosing a copy of a letter to you which was mailed to me, I presume by the Methodist Minister—Yes I did ask this minister to go see Floyd Loveless. But that was quite a long time ago— Floyd Loveless told me his mother was of Methodist faith—so I told him if he wished I would sent this gentleman down to see him. But I did not know until the Warden informed me—a few days ago—that Floyd Loveless had asked for the Priest—over 2 months ago—when I asked Floyd what his faith was. I figured that a child condemned to die should have some religious faith to sustain him. I am glad and proud that he has asked for the Priest. Quite a while ago I started sending him extensive magazines. I also sent him a 4 Mary medal. But all his letters he never told me he was receiving Religious Training.

  I believe the dear Fathers who are so interested in him can really bring out what is best in him—and if his life is spared I give my word of honor before God and the Holy Mother to do my best to rebuild his life.

  The father of this boy makes the weak excuse he cannot come to him because he cannot get gas and tires. He can travel by bus cheaper than he could drive his car. If it were my boy I would hitchhike to help him or at least be with him. So hoping for the best—and that your health is improving each day. I remain your friend.

  Mrs. Ed White.

  Ray Loveless with car. Photo courtesy of Mike Loveless.

  Just as on any usual Monday, the phone was ringing even as Mrs. Parks unlocked the office door.

  “Good morning. Law offices Oliver Custer,” she said breathlessly.

  She listened to the man on the other end then said, “Thank you Mr. Sheehy, yes, I will let Mr. Stewart know.” Royal Stewart was an assistant to Oliver Custer who, along with Taylor Wines, would handle Floyd Loveless’s commutation hearing. She replaced the receiver and grabbed for a pencil. No sooner had she started writing than the telephone rang again.

  “Law offices Oliver Custer.”

  “This is Governor Carville calling for Mr. Stewart,” he said.

  “I am sorry, sir. But
he is not in at the moment. May I take a message?”

  Mrs. Parks listened intently. When the conversation was concluded, she wrote her notes.

  Monday morning September 18, 1944 10 o’clock

  Mr. Sheehy of the state prison called. The Governor has set hearing for Floyd Loveless on September 26th at ten o’clock in the morning at the Governor’s office.

  The Governor himself called later asking for Mr. Stewart. He talked to me. He is not sure that he can legally grant a reprieve. See Vol. 1, page 60, Nevada Compiled Laws, Section 99. He is getting a ruling from the Attorney General and will call me again. I told him about Mr. Custer’s letter to Mr. Wines, and when the Gov. calls us again, we must get in touch with Mr. Wines.

  Mr. Stewart called Governor Carville has a ruling from Attorney General cannot grant reprieve.

  Her notes written, Mrs. Parks deftly placed a sheet of paper over a carbon paper and ratcheted them into her typewriter. She would inform Mr. Wines that Mr. Custer would not be back in time for the Loveless hearing. She stopped typing. A telegram would be quicker.

  The Carson City Chronicle presented a much longer and different viewpoint than that of the Elko newspaper in its earlier editorial. The Chronicle of Friday, September 22, 1944, stated:

  Open Letter to the Honorable Board of Pardons and Parole.

  Gentlemen: Today millions of our men and women, boys and girls, are engaging in a bloody war which is being waged for the maintenance of principles of Christian democracy.

  Today international society is paying a terrific price in human suffering, broken homes and the sacrifice of life for its neglect of past decades.

  Today we as parents, as educative factors, as nations and as a world-society are, through the youths we are educating and setting an example to, laying, the groundwork for the world society of tomorrow while we pay for the mistakes of yesterday.

  Today a lad not yet 18 sits in the “death house” of our state penitentiary awaiting the carrying out of his sentence.

  He cannot be said to be languishing in his cell, for he has been applying himself to acquiring useful knowledge during these months since a death sentence has hung over his head and has, in that respect disclosed a rare quality of determination and courage. For to all intents and purposes his knowledge will never be of any value to him.