The sun was high overhead. Floyd slowed his pace until he was barely walking. All the while, he cursed Dale and thought of the man in the Studebaker begging for a doctor. He had no idea what time it was. Hours must have passed since he shot the man and Dale had left him stranded.
He turned and saw a car coming in the distance. He held out his thumb. They were traveling fast. Would they stop for him? With any luck they might be going to California. The car slowed and lurched to a stop. It was a Packard with four men in it. They all jumped out. “Put your hands up!” one of them snarled.
Floyd thought about it. His hand crept for his pocket and stopped. Something in the man’s eyes said he meant to shoot. Floyd raised his hands.
“Have any trouble with an officer?”
“No, sir,” Floyd answered.
“Don’t lie to me, young fellow! What do you know about an officer being shot and left alongside the road?” Guidici demanded.
“I did it,” Floyd admitted. “
“Is that a fact? Well you just better hope he doesn’t die.”
They arrested him, handcuffed him and shoved him in the car. He was going back.
“I—never meant to hurt him,” Floyd whimpered.
One of the men surprised him by turning from the front seat and asking, “What about the other fella?”
So they knew about Dale. But how?
“He’s headed to California.”
“Not just yet he’s not. That a red sedan he’s driving?”
“Yes, sir. A new Buick,” Floyd said proudly. “We stole it in Indiana.”
Ten miles down the highway, Dale was racing the Buick toward California and freedom. He got as far as Lovelock. Floyd was dropped off at the Humboldt County jail in Winnemucca, and deputies continued their pursuit of Cline. Within an hour, the Buick was surrounded. After a barrage of bullets tore into the car, Cline was unharmed except for a scrape on his nose.
“It wasn’t me. It wasn’t me who shot him,” he screamed as they pulled him from the bullet-ridden car. “I didn’t want to get mixed up in a shooting. I let him off—”
Before the night was out, he, too, would be in the Humboldt County jail.
The next editions of the Elko Daily Free Press carried headlines, photos and stories. Constable A.H. Berning was in critical condition at the Elko General Hospital. Berning was well thought of and respected in the community. Having been the Carlin constable for over twenty years, he’d had his share of run-ins with outlaws. In 1922, he made national news when it was reported he’d apprehended the killer of Hollywood movie producer William Desmond Taylor. It turned out he hadn’t.
There had been a close brush with death in September 1935 when he stopped a vagrant and ordered him to leave town. The man nodded as if in agreement and walked away.
Later in the day, Constable Berning was driving along Railroad Street when he spotted the man again. He stopped his truck and rolled down the window. “I told you to leave town. Come on and get in the truck. I’m taking you to jail.”
The man pulled a knife. “I’ll cut your head off if you come near me,” he snarled.
Constable Berning jumped from the truck, swinging his sap. The weapon missed its target, but Berning grabbed for the knife. The man was too fast. He raked the blade across Berning’s thumb and into the left side of his neck, missing the jugular by inches.
Young Constable Adolph Berning in front of the Carlin jail. Photo courtesy of Northeastern Nevada Museum.
Berning stepped back from his assailant, pulled his gun and fired three times, hitting him in the chest and thighs. The stranger dropped dead where he stood. After his fingerprints were sent to the Department of Justice in Washington, D.C, the man’s identity was discovered to be one William Dixon, who had been released from a state farm in Greencastle, Indiana, four years earlier.
Constable Berning had arrested a clever teenage horse thief in 1934 without incident. The seventeen-year-old youngster cut the telephone wires to the ranch where he worked so that when he rode off on a stolen horse, there would be time before the theft could be reported. But it was a 1939 incident that would strangely foreshadowed Berning’s murder. Three runaway Ohio teens were headed for California in a stolen car. In Elko, the inexperienced driver misjudged a turn, brushing the car’s fenders against a parked car. Instead of stopping, he slammed the gas pedal, and raced westward out of town. Unfortunately for the boys, a woman quickly phoned the sheriff to report what she’d just seen. Elko deputies alerted Constable Berning.
Just as he would later do with Loveless, Berning parked his truck and waited for the youthful lawbreakers. The boys were contrite when caught. That story had a very different ending from the one that was being reported across Nevada on this night.
Constable Adolph Berning in front of the Carlin jail. Photo courtesy of Northeastern Nevada Museum.
In the Humboldt County jail, Loveless wept as he explained that he hadn’t intended to harm the constable. He hadn’t realized the man was an officer until it was too late. He wore no uniform, drove no marked car and showed no badge. They were struggling, and the man was hitting him on the head with his fists.
According to Judge L.O. Hawkins in a letter to Nevada governor E.P. Carville on September 18, 1944:
I talked at length with Floyd Loveless in a very few hours after he shot Berning and he told me the details of the shooting. At that time he was in the Humboldt County Jail and throughout the approximate one hour I was in the jail talking to him he was sobbing and crying like the little terrified boy he actually was. As a result of that interview I am satisfied Loveless was not then a hardened criminal and that he did not intend to take the life of Constable Berning.
Early the next morning, Loveless and Cline were transported to the Elko County jail. After fingerprinting and booking, Cline was placed in an upstairs misdemeanor cell and Floyd in a felony cell on the ground floor. Blocks away at the Elko General Hospital, Constable Dolph Berning clung to life. Seven years earlier, his younger sister Mamie had come for a visit, only to be rushed to this same hospital, where she died during emergency surgery. There was no surgery for Berning. Nor was there any hope.
Original Elko General Hospital photograph. Courtesy of Northeastern Nevada Museum.
Original Elko General Hospital front door. Photo courtesy of Northeastern Nevada Museum.
Floyd was taken upstairs to the sheriff’s office. There Sheriff C.A. Harper explained that a statement was not necessary and that anything he might say might be used against him. Harper would later testify that during his confession, Loveless was not compelled or threatened in any way.
Being fifteen, it’s doubtful he realized the importance of having an attorney present, much less the severity of the trouble he was in. He didn’t have money for an attorney even if he had wanted one. This was how it was done in the decades before the 1966 landmark Supreme Court case Miranda v. Arizona, which gave the accused the right to have an attorney present during questioning even if he or she couldn’t afford one.
And without counsel, but with District Attorney Clarence Tapscott and S.O. Guidici (one of the officers who apprehended him) looking on, Floyd gave his confession, and it was taken down by a shorthand reporter. Sheriff Harper asked, “After you got into the car that you stole in Elko, when did you next see Dale?”
“Out on the highway between here and where the constable stopped me,” Floyd answered.
“You say the constable stopped you?”
“Yes, sir.”
“Where?”
“Carlin.”
“How did he stop you?”
“I seen him out there on the road, and I just stopped.”
“What happened then?”
“He said that he would have to take me back for being in a car I didn’t belong in.”
“What time was that?”
“I don’t know.”
“It was the same day?”
“Yes.”
“How long after you stole the car?�
�
“About [a] half hour or hour.”
“After the officer, Mr. Berning, had told you that he had to take you back, what happened then?”
“He got in the car, and I pulled out the gun and said I wouldn’t go back with him. He grabbed the gun, and I shot him. The gun got jammed, and we started fighting. And then I pulled the trigger again, and it worked, and I drove off down the road. Stopped the car and got in the Buick.”
That same day, Berning died of his injuries at 1:45 a.m., thirty-four hours after being brought to the hospital.
On August 24, 350 friends gathered in Carlin for the funeral of Constable Berning at the Odd Fellows Lodge, where he had been a member. Afterward, people gathered outside the lodge and quietly remembered one of Nevada’s oldest peace officers, Constable Berning. A man who was always willing to help those in need, A.H. Berning had worked long hours at the Carlin makeshift hospital caring for the sick during the influenza epidemic of 1918. One day not so long ago, he’d put in his day as constable then went home to build a coffin for the child of a family too poor to purchase one. He had spent his spare time working his gold mine in the desert. For relaxation, he played the drums in a band, and every Christmas, he could be counted on to decorate the Carlin Christmas tree.
Another view of the original Elko General Hospital. Photo courtesy of Northeastern Nevada Museum.
The town had lost a caring and giving citizen in Constable Berning. It would not soon forget him.
Berning was interred at the Carlin Cemetery.
In explaining the situation Floyd had faced in Elko, his court-appointed attorney Taylor H. Wines wrote to Oliver Custer, who later took an interest in his case, on December 21, 1943: “For several days after being brought back to Elko there was considerable complexity in the District Attorney’s office as to how to proceed with the boy and it was finally concluded that a petition should be filed in the Juvenile Dept. of the District Court, at that time I was appointed to represent Floyd at that hearing.”
The petition was filed in the Juvenile Department of the district court, alleging Floyd, as a delinquent child, had committed first-degree murder. The petition also asked that he be tried in the district court. Because he was a juvenile, his father and stepmother were also named in the suit and served with summons in Indiana.
Even if they had wanted to, the Lovelesses couldn’t drop everything and come to Nevada. There were jobs and other children to take care of. Floyd had really gotten himself in trouble this time, and he was on his own. There was nothing they could do but sign their consent for a hearing of the juvenile proceedings.
While Floyd awaited word on his hearing at the Elko jail, Nevada executed its oldest person. John Kramer, age sixty-one, was escorted to the gas chamber on the morning of August 27, 1942, for murdering his longtime lover, Frances Jones. Reno attorney Oliver Custer appeared at the Board of Pardons and Parole twice, seeking a commutation for Kramer. Two years later, Custer would remember what he learned from those appearances when he fought for Floyd Loveless.
On the September 10, Floyd’s hearing was held in the juvenile court division to determine which court had jurisdiction. The question was whether he would be tried as a juvenile or an adult. Ironically, the boys’ reformatory, Nevada Industrial School (Nevada Youth Training Center) was located just a few miles from downtown Elko. If the district attorney had his way, Floyd would be going to a far worse place. Judge Dysart had appointed young Elko attorney Taylor Wines to handle Floyd Loveless’ case. Not yet thirty, Taylor Wines’s roots went as deep in the community as anyone’s in the courtroom. Members of his family had lived in the Ruby Valley since the mid-1800s. After finishing law school he’d returned to Elko, where he’d been in private practice just over a year. Busy with other cases the court had assigned him, he would fight to keep his client in the juvenile division and, thus, out of the gas chamber.
Floyd’s statement was read.
Happy to have escaped Floyd’s trouble, Dale Cline took the stand. And carefully avoiding eye contact with Floyd, he told of their escape from the reformatory and of tricking his former friend out of the Buick.
Taylor Wines in the 1940s or ’50s. Photo courtesy of Northeastern Nevada Museum.
The defendant was fifteen years old; Taylor Wines didn’t want his case removed from the juvenile division. Wines hadn’t had a lot of time to prepare. While discussing other cases involving juveniles, he looked at his notes and then continued speaking: “I have a number of other cases which I haven’t here at this time, which I would like to submit later if I may. Subject to the motion to dismiss, which he has made, I would like, if the Court will permit, to put the defendant on the stand and have him testify concerning his life.”
“Well, you have the privilege of putting the defendant on the stand if he wants to take the stand at this time,” the judge said.
“May I have ten or fifteen minutes to talk?”
“Yes, ten or fifteen, which do you want?”
“Ten minutes will be enough,” Wines responded.
He was confident that the facts of the boy’s life would sway the decision in his favor. But once they were out of earshot, Floyd refused to testify.
When the hearing resumed, Wines said, “If the court please, we have nothing further to offer.”
TRIAL
Extreme justice is often injustice.
—Jean Racine
Elko’s first county courthouse was completed the week before Christmas 1869. The two-story brick structure was a courthouse Elko was proud of and a sign of permanency. The county commissioners now had a place in which to conduct business. More importantly was the dispensation of justice that would take place within these walls.
Elko justice was generally swift; Sam Mills found this out the hard way. When he unintentionally blasted his best friend into the hereafter, Mills was tried and sentenced to the gallows. The son of former slaves, Mills was the first person legally hanged in Elko; he would not be the last. Surely, the most notorious people ever tried in the old courthouse were Josiah and Elizabeth Potts, the first and only woman executed by the State of Nevada.
Found guilty of murdering and mutilating Miles Fawcett, the Potts were hanged (behind the present-day courthouse) on June 20, 1890. The execution was unsightly. With black hoods slipped over their heads, the condemned were hanged, one after the other. Josiah was first to go. Next up was his wife, Elizabeth, a corpulent woman in a creamy white frock. The rope couldn’t support her weight, and her neck was nearly severed. Witnesses turned away in horror. Mrs. Potts’s white dress was covered in blood.
Original Elko County Courthouse, circa 1908. Photo courtesy of Northeastern Nevada Museum.
Original Elko County Courthouse. Photo courtesy of Northeastern Nevada Museum.
Elko County Courthouse, circa 1940s, from an old postcard. Author’s collection.
Twenty years after the Pottses’ executions, county commissioners decided that Elko County needed a larger, more prestigious courthouse. They hired well-known Watsonville, California architect William H. Weeks to design just such a building. In 1910, the old brick building was demolished, and a Neoclassical-style courthouse was erected at a cost of $150,000 on a nearby site at the corner of Sixth and Idaho Streets.
Elko County gained some notoriety with a case that was tried in the new courthouse on September 18, 1917. District Attorney Edward P. Carville prosecuted Ben E. Kuhl for a murder in Jarbidge Canyon in Northern Elko County. Kuhl, a petty criminal with a long record, had lain in wait for the mail stage bearing thousands of dollars in cash. After killing coach driver Fred Searcy, Kuhl made off with over $3,000. Billed as the West’s last stagecoach robbery by newspaper writers, the case was cracked by a bloody palm print that matched Kuhl’s. Kuhl admitted to killing Searcy but claimed they had planned the robbery together. The killing, he said, occurred during an argument. After two hours of deliberation, the jury found Kuhl guilty, and District Judge Errol J.L. Taber sentenced him to death. The sentence
was appealed and commuted to life. Carville went on to be Nevada’s governor and Errol J.L. Taber a Nevada Supreme Court justice, and Kuhl would walk out of the Nevada State Prison a free man in 1945.
A blindfolded Lady Justice (one of three) above the front door of the Elko County Courthouse. Photo by Bill Oberding.
Errol J.L. Taber and Edward (E.P.) Carville would later play integral parts in Floyd Loveless’s case.
Sixty years into statehood, Nevada opted for a more humane method of carrying out its death sentences. Toxicologist Dr. Allen McLean Hamilton proposed using lethal gas much like that used in combat during World War I. Nevada deputy attorney general Frank Kern liked the idea so much he persuaded Assemblymen J.H. Hart of Lovelock and Harry L. Bartlett of Elko to introduce a bill to use lethal gas exclusively.
On March 8, 1921, Hart and Bartlett introduced Assembly Bill 230. The so-called Humane Death Bill quickly passed the lower house and won approval of the Senate. Governor Emmet D. Boyle signed it into law on March 26, 1921: “The judgment of death shall be inflicted by the administration of lethal gas.”
Elko County Courthouse shortly after its completion. Photo courtesy of Northeastern Nevada Museum.
Elko County Courthouse, present day. Photo by Bill Oberding.
An airtight gas chamber was built in the prison yard for the execution of convicted killers Gee Jon and Hughie Sing, even as they appealed to the Nevada Supreme Court that gas was cruel and unusual punishment. Hundreds of Nevadans agreed and signed a petition to halt the executions. Not being the shooter, Sing was spared. Jon was not so lucky. The Nevada Supreme Court denied his appeal, finding that gas was neither cruel nor unusual.
The court stated:
For many years animals have been put to death painlessly by the administration of poison gas.…No doubt gas may be administered so to produce intense suffering. It is also true that one may be executed by hanging, shooting or electrocution in such a bungling fashion as to produce the same result. But this is no argument against execution by either method. It may be said to be scientific fact that a painless death may be caused by the administration of lethal gas.
The Boy Nevada Killed Page 5