The Boy Nevada Killed

by Janice Oberding

  On Tuesday next you gentlemen are to decide whether Floyd Loveless shall live or die.

  On Tuesday you will carefully review the facts that Floyd Loveless committed a major crime in Nevada; that he is evidently a reprehensible character; that the probability of his becoming a good citizen is remote or imminent.

  You will issue an edict which will either commute him to life imprisonment or condemn him to the gas chamber.

  As in cases of the past, you have a terrific responsibility to the people of the state, to the nation, to yourselves, and to the upholding of the principles over which the world is today fighting.

  We do not envy you. Rather we commend you upon your decisions of Tuesday as well as those in the past, for we know that regardless of the outcome, that decision will be in accordance with your views of our welfare and in just fulfillment of the responsibility placed upon you.

  We know you have carefully weighed the facts of the Loveless case—or will have—so we do not attempt to offer to call any facts to your attention.

  We do, however, take occasion to emphasize a few highlights of which we are aware and ask that you give these special consideration

  Floyd Loveless has not had the privilege of being brought up under normal circumstances; he has not had the advantage of a normal home life and the care of a loving mother.

  As a probable result of these facts he was at an early age committed to a reform school and while still in his fifteenth year escaped and started west.

  Because he was caught up with; because he sensed the frustration of his questionable ambitions; because he was afraid of being made to return to the environment he had left, he killed a man.

  Loveless is a nice-looking boy. He is still less than 18 years old; he has a good personality; he has many good habits; he has not evinced the traits of most men in his position; regardless of statutory provisions he was a mere boy when he committed his crime.

  The possibility exists that given a reasonable opportunity Floyd Loveless can become a useful citizen; he is still quite young and quite impressionable and it is possible that his experience may result in a reaction beneficial to himself and to society.

  Should you see fit to commute his sentence, gentlemen, you do not turn him loose again upon society. You do give him an extended opportunity to “show the stuff he is made of.”

  Should your decision prove erroneous after a 7 year period, he will merely share the lot of other “lifers” in the penitentiary, and the state will be no worse off.

  Should your decision be justified you will have expressed Christian principles not provided for by statute and at the same time converted a bad boy into a good man.

  In closing we quote from Matthew 5:44 “But I say unto you. Love your enemies, bless them that curse you, do good to them that hate you, and pray for them that despitefully use you and persecute you.”

  These are the words of our exemplar Jesus Christ, and in his name we pray that the principles laid down by him be expressed in the hearts and lives of all mankind.

  Again we commend you upon whatever your decision may be and respect you for it. But we hope and pray that you may be guided to give this boy a chance to become a man.

  September 22 promised to be another warm day in Carson City. Indian summer is what the locals call that time before colder temperatures settle into the region, a comfortable lull between summer’s heat and the gloom of winter. This was the day of Floyd Loveless’s commutation hearing before the Nevada Board of Parole and Pardons, the day on which all the youngster’s hopes hung.

  Every chair was taken. A soft murmur echoed throughout the room. People, eager to share their views on whether the seventeen-year-old should receive a commutation, talked among themselves and waited. The Board of Paroles and Pardons was made up of the three Nevada Supreme Court justices, the state attorney general and Nevada governor E.P. Carville, who also acted as the board’s chairman.

  Carville called the special meeting to order. The board would now decide the fate of Floyd Loveless.

  Taylor Wines rose to speak. Reminding them that Floyd had been only fifteen when Berning was killed, he asked that Floyd’s youth be taken into consideration. Because Oliver Custer was still in Georgia on family emergency, his assistant, Royal Stewart addressed the board next.

  “Please give this boy a chance in life,” he urged. “It will be the first he has had since birth. The fault here is hereditary. He is only seventeen, gentlemen. Please consider his age. If he should be executed, it will be for the crimes of the parents.”

  “Mr. Wines, what are your future plans for Floyd Loveless if he should be given a commutation?” Deputy Attorney General W.T. Mathews asked.

  Before Wines could answer, Elko district attorney Wright asked, “Isn’t it true, Mr. Wines, that Loveless said if the jury found him guilty he had rather be gassed then spend his life in prison?”

  “No,” Wines answered sharply.

  Reno High School student Scott Whitney’s parents had befriended Floyd and corresponded with him regularly. Young Whitney spoke on behalf of his contemporary, asking that the board not punish Floyd Loveless so harshly. When he was finished, Whitney presented two petitions signed by students of Reno High School and Sparks High School.

  Father Collins of the Catholic Welfare Society told the board that the punishment was unjust.

  Elko district attorney Wright began his argument against commutation by talking about Officer Berning’s dying statement. The statement was excluded from the records. The board ruled there was no question of Loveless having killed Berning; his attorney had not denied his guilt. After talking about Floyd Loveless’s extensive criminal record, Wright read that record to the board.

  Floyd Loveless had not been charged with, or convicted of, the rape of Mrs. Knoth. There was not enough evidence, and the victim herself could not positively identify him as her assailant. And yet they argued over the crime. Wines stood.

  Floyd, he told them, was known to sometimes take the blame for crimes of his brother and friends. It was more likely that his confession had been an attempt to protect his elder brother Robert.

  Wright then argued that infants were not immune to the death penalty. And according to the handwritten meeting record, he cited many cases in which children twelve years of age were executed.

  The written record does not mention if Wright brought up the name George Stinney. Stinney was executed in South Carolina on June 16, 1944, at the age of fourteen, making him the youngest person to be executed in the twentieth-century United States. Nor did Wright refer to the twelve-year-old girl Hannah Ocuish, who was hanged in New London County, Connecticut, on December 20, 1786. He also did not refer to James Arcene, the youngest person ever to be sentenced to death in the United States. Arcene was eleven when sentenced and twenty-three years old when his execution was finally carried out in June 1885.

  In the “Supplemental Points and Authorities of the District Attorney, Elko County, Nevada” that he presented to the Pardons and Parole Board, Wright wrote:

  INFANTS ARE NOT IMMUNE FROM DEATH PUNISHMENT In the case of The State v. Guild, 10 N.J. Law 163, 18 Am. Dec. 404, the defendant was 12 years and a little over 5 months old at the time that he killed a woman by beating her about the head and body. He hit her four times. The jury returned a verdict of guilty which carried a death penalty. An appeal was taken. The case affirmed and the defendant executed. [The boy was hanged. What Wright did not mention was that the defendant, Guild, was a slave and that his case predated the Civil War.]

  The Board of Pardons and Parole do not impose the death penalty. The jury did that and the trial judge carried out the mandate of the jury. The duty as to commuting a sentence is negative in character. As stated in the case of Henry v. State, Okl. 1. 136 F. 982 at 988 (a state where the governor has the power of commutation).

  There is no provision of law in Oklahoma which requires the Governor to approve a verdict assessing the death penalty before it is executed. His duty with refer
ence to such verdicts is negative and not affirmative. He has nothing whatever to do with them, unless he may be satisfied that an injustice has been done in an individual case; then he may commute the sentence or pardon the offender; but this can only be done upon the ground that, upon the facts presented, the defendant was a fit subject for executive clemency, and that an exception should be made in his favor as against the general rule of law.

  We submit that the verdict of the jury was not the result of prejudice or passion but was based on facts and an injustice has not been done and the Board of Pardon and Parole should deny the request for commutation to life imprisonment.

  Respectfully submitted

  George F. Wright

  District Attorney.

  This is contrary to the August 22, 1942 Reno Evening Gazette account of the community’s feeling about the crime.

  District Attorney C.B. Tapscott was searching the Nevada statutes to determine how best to proceed against the youths.…He said he intends to demand the maximum penalty for both boys, and Elko county residents, in high feeling since the shooting say they will insist on the full penalty for Loveless regardless of his age.…Observers said that the community of Elko has not been so aroused since Luther Jones shot four prominent Nevada stockmen to death in a cabin at a cattle corral near Elko in 1936.

  In trying to save Loveless, L.O. Hawkins also ignored the execution of George Junius Stinney that year. Apparently Stinney was executed after the case Hawkins referred to in the following telegram he sent to the Governor Carville, chairman, on the night before the hearing.

  In Ridge against state 229 Pacific 650 Oklahoma supreme court say quote in all the history of our law there are few instances where young children have been put to death as a punishment for murder and none anywhere so far as we know within the last years unquote hope Loveless life we be spared. LO Hawkins.

  Elko County sheriff C.L. Smith told the board about reading a letter that Floyd had written to his grandmother while in the Elko jail. According to Smith, Loveless had complained that the majority of Elko spoke for Elko County and the prison groups should do something more than to save the lives of criminals.

  His feelings seemed to be shared by Mr. Griffin of Carlin, who said, “Two times is enough. Now the state should carry out the law.”

  Mr. and Mrs. Thomas spoke of Loveless’s extensive record and how they felt he should not be given commutation.

  Royal Stewart spoke again in rebuttal; when he was finished, it was noon. The meeting was adjourned for lunch until 1:30 p.m.

  When the meeting resumed, Attorney General Alan Bible read petitions and several of the letters written by Floyd’s friends and family.

  Inmates of the Nevada State Prison had drawn up their own petition that was signed by 161 of them. The petition was also presented and read to the board.

  We the undersigned do hereby beseech, and beg, of the honorable Board of Paroles and Pardons that they give their careful consideration to this petition. We are making an appeal on behalf of Floyd Loveless, sentenced to be executed on the 29th day of this month.

  We have been associated with Floyd since his incarceration here, and we believe that this young boy (only 15 years at time of crime) should have his sentence of death commuted to a life sentence. He has been extremely popular with all the inmates here and with the prison personnel has never given any of us any trouble and has been nothing but honest to all of us.

  To take the life of the young boy would not benefit anyone, two wrongs will not make a right and to execute this boy would be against God’s law, who put breath into all living things.

  So again, we beg that you listen to our pleas, AND SHOW MERCY TO FLOYD LOVELESS

  September 9, 1944

  To the Honorable Board of Pardons and Probations

  Gentleman:

  Whereas one Floyd Loveless is now in the Nevada State Prison, at Carson City, under sentence of death for the murder of one A.H. Berning committed in Elko County, Nevada on August 20, 1942, and will shortly be executed at said State Prison unless your Honorable Board commutes his sentence; and

  Whereas the said Floyd Loveless, at the time he shot and killed the said Berning was then only a boy between fifteen and sixteen years of age and has not yet attained the age of eighteen years; and,

  Whereas, we believe it will be for the best interest of society and act of Christian mercy to spare the life of the said Loveless; we, the undersigned, residents of Las Vegas, Nevada, therefore petition your Honorable Board to exercise the authority vested in you by the Constitution of Nevada, and the laws of this State, to spare the life of the said Floyd Loveless and commuted his punishment for said crime from that of death in the lethal chair to life imprisonment. Respectfully signed and submitted.

  A Las Vegas lawyers’ group also signed and submitted a petition for Loveless: “We, the undersigned citizens of the state of Nevada, and the

  U.S.A. respectfully petition the Honorable Board of Pardons and Paroles to commute the sentence of Floyd Loveless from death to life imprisonment.”

  Among those who signed the petition were a local sheriff and the prominent Nevada lawyer and politician George Springmeyer, who also signed for his wife, Sallie R. Springmeyer. George and Sallie R. Springmeyer were the parents of famous Nevada author Sally Zanjani.

  Floyd Loveless’s statement to the board was also read aloud: “When Mr. Berning got in the car with me, we began to struggle and I shot him because I was frightened. I did not intend to kill him. At the time of the struggle I was 15 years of age. I am sorry for what happened and I did not mean to do what I did.”

  It was well into the afternoon; everyone had spoken, and the petitions, statements and letters had all been read. The time had come for the five members of the board to cast their secret votes. This was as far as it went. Taylor Wines and Royal Stewart exchanged worried glances. The hope that the young attorneys clung to was on the slenderest of threads. The room fell silent. The vote was announced: 3–2 against commutation.

  Given that three members of the board were the same three justices who denied his appeal, this should not have come as a surprise. It is most likely that they are the three who voted against commutation and that Governor Carville was one of the two votes for it.

  On September 28, 1944, Floyd was scheduled to die the next morning while most of Carson City slept. His case had garnered a lot of interest; news media was at the prison to get his last thoughts. Not shy about writing to well-wishers, family, friends and attorneys, Floyd had no words for these strangers with their pencils and notepads. He had always kept things to himself. Why should this be any different? His letters were written. Long letters in which he expressed regret and asked his family’s forgiveness for all the pain he had caused.

  In the warden’s office, he was invited to sit down as he went over his final instructions. They were simple. He handed his packet of letters to Warden Sheehy; they were letters for the family and for the people who had fought so hard to prevent this night from ever happening.

  “Warden Sheehy, will you see that these are mailed?”

  Sheehy nodded. “I’ll do that.”

  “And I want my stuff to go to my buddy Tom.”

  Sheehy looked at the boy who sat across from him. How on earth had this come to be? “Yes, I’ll see that Tom gets your things, Floyd.”

  “None of them have the money to bring me home, so…I’ll be—at the Catholic Cemetery here.”

  “I see,” Sheehy said. “Is there anything else you’d like me to do for you?”

  Floyd thought a moment. “Please send some roses to my grandmother.” When they heard about this, newspaper editors seized on the pathos in these words. This is something they could tell their readers. The Reno Evening Gazette from September 27, 1944, reported the details of the execution: “The

  execution will be held at 5 A.M. at the state prison in Carson City, Warden Richard Sheehy announced today. Witnessing the execution will be peace and prison officials and n
ewspapermen. Women are forbidden to attend.”

  In Indiana, Floyd’s family still clung to the belief that no state would kill a child. Maybe Nevada wanted to frighten the boy; maybe the state would punish him by keeping him in prison at hard labor for the rest of his life, but surely it would not send a seventeen-year-old to the gas chamber.

  Floyd had never come so close to death and never so close to the gas chamber. This time, he resigned himself. Preparations were underway for the early morning execution in Carson City when the phone call came. The execution was to be stayed until 6:00 p.m. so that the Nevada Supreme Court could consider a writ of habeas corpus. Attorneys Bert Goldwater and Royal Stewart presented the petition for a writ before Justice E.J.L. Taber.

  Floyd waited, prayed, cried and wished with all his heart it could be different. His life was in the hands of three old men at the Supreme Court. What would they rule, he wondered. The way his life had been, he tried not to think of that, focusing instead on what Father Buel was telling him. A better place, that was where he was headed if they said no to his attorneys. If only he had listened to his grandmother, he thought. What was she doing at that moment?

  The writ of habeas corpus maintained that Floyd Loveless was insane and did not have the capacity to understand the proceedings against him or to aid in his defense. And that his court-appointed attorney (Taylor Wines) failed to have Loveless examined by competent medical authorities and failed to present Floyd’s true condition to the court and the jury.

  The writ also stated that during the entire period of Floyd’s trial, a large part of Elko County residents, from which the jury was drawn, were inflamed with passion, prejudice and bias against Floyd Loveless and that the juries impaneled were likewise prejudiced by passion and were biased; thus, Floyd Loveless was denied due process under the law, the constitution of the State of Nevada and the Fourth and Fifteenth Amendments of the Constitution of the United States.