The Boy Nevada Killed

by Janice Oberding

  “No, sir, not exactly.”

  “Could you give us an estimate?”

  Cline thought a moment. “Fifteen foot.”

  “And where was Mr. Berning?”

  “Well, when he drove up, he was standing about three foot from the red coupe, and he waved Floyd down. Floyd stopped, and he walked over to Floyd’s car. Coupe drove away.”

  “Then what happened?”

  “He said something to Floyd’s car and told me to go on, waved me around.”

  “How did he wave you around?”

  Dale waved his hand. “Like this.”

  “Did he turn around from Floyd’s car when he waved for—”

  “I believe he did, left-hand window sill of the car, and left hand, like that, and he told me to go on. He was between me and Floyd.”

  “How far were you before you looked back?”

  “I am not sure of that, 150 foot, I imagine. “

  Wines glanced at the jury and then asked, “When you looked back, did you see the red coupe that was parked there when you first came?”

  “No, sir, I didn’t notice it.”

  “You didn’t see it at all?”

  “No, sir.”

  “But you saw Floyd’s car?”

  “I seen the coupe. I don’t remember seeing it.”

  “Was the car sitting in the same position that it was when you left?”

  “Floyd’s car was.”

  “Were the doors closed?”

  “I believe they were.”

  “And could you see someone struggling?”

  “Yes, sir.”

  “Did you hear anything unusual?”

  “No, sir.”

  “Did you ever look back again?”

  “No, sir, I only looked back once.”

  “That one time you looked back, did you see things pretty clearly?”

  “Yes, I seen pretty clearly.”

  “Did you look in your rear vision mirror, or did you look back and out the—”

  “Out the back window.”

  “Out the back window. How far did you go before stopping?”

  “To the filling station.”

  “Do you have any idea how many miles that would be?”

  “No, I don’t know exactly.”

  “What happened there?”

  “I stopped and got gas.”

  “Did you have any conversation with the attendant there?”

  “Well, when Floyd went past, I says, ‘There’s someone I was racing with.’ Originally, I ordered two dollars’ worth of gas, and I seen him went past, and I only had a dollar and a quarter in, and so I paid that and left.”

  “And the next time you saw him, he hailed you?”

  “Yes, sir.”

  “And you drove about a mile, and he got out?”

  “Yes, sir.”

  Floyd glared at Dale.

  “How fast were you traveling, do you think, when you looked back the first time, look[ed] back that once?”

  “Thirty or thirty-five. I had it in second gear.”

  “You had it in second gear?”

  “Yes.”

  “You had the car under full control?”

  “Yes, sir.”

  “And turned around and looked out the back window?

  “Yes, sir.”

  Tapscott was ready with redirect.

  “Dale,” he asked. “You stated that revolver that Floyd had was taken in Indiana?”

  “Yes, sir.”

  “And there was also a rifle taken before you left Indiana?”

  “I think the rifle was taken at the same place the revolver was.”

  “What use did you make of those guns driving out, if any?”

  “None. No use.”

  Tapscott looked askance at him. “Were they ever used to help you get through the country in any way?”

  “Just we held up a filling station.”

  “In Omaha?”

  “Yes, sir.”

  “Who held that up?”

  “If the court please,” Wines said. “I think that is entirely irrelevant in this matter. We shouldn’t go into that.”

  “That question was opened up on cross examination, if the court please,” Tapscott said.

  “I see no need of that, Mr. Tapscott. The objection is sustained,” Judge Dysart said.

  “If the court please, I ask that the last question and answer be stricken,” Wines said.

  “Well,” Judge Dysart said “the objection is sustained and the record will show that Mr. Wines.”

  “That’s all,” Tapscott said.

  “Just a moment,” Judge Dysart said. Then, turning to the witness, he asked, “Dale, during that conversation that you had beyond Primeaux filling station, I ask you whether or not Floyd Loveless said anything to you about where he had left the officer that was shot?”

  Wines stood. “If the court please, I interpose an objection on the ground that the question is leading and asks for a conclusion. The witness had already testified all he remember concerning the conversation, and I further object that it is hearsay.”

  “Objection overruled.”

  Dale looked at the judge. “Yes, sir, he said he left him in the car.”

  “Anything further you want to ask?” Judge Dysart asked Tapscott.

  “No further questions.”

  “You may be excused. You may step down,” Judge Dysart told Cline.

  Dale stepped from the witness stand. His eyes cast downward, he walked past Floyd, who stared absently at the courtroom windows. He must never let these people know how frightened he truly was.

  Deputy Sheriff S.O. Guidici took the stand next. District Attorney Tapscott approached him, smiling affably. “You may state your name please.”

  “S.O. Guidici.”

  After taking his witness through the first report of the stolen Studebaker and the subsequent report of Constable Berning’s shooting, Tapscott asked, “Now, who, if anyone, did you contact or see at the Primeaux service station?”

  “On arriving at the Primeaux service station, I noticed the gray coupe that was stolen, with the 1942 Nevada license number 26-519 parked alongside Primeaux station, or at least the building to the east of Primeaux service station. And on slowing down Mrs. Primeaux flagged us down, and she hollered at us there was a fellow walking down the highway, Highway 40, and we proceeded west and made an investigation as to who the party seen walking down the highway might have been.”

  “What did you do after leaving Primeaux station?”

  “We proceeded west on Highway 40, and at a point between six and seven miles up, I believe, we noticed a fellow walking west on Highway 40, and on approaching him at a distance of about twenty feet, he flagged us down, raised his right hand and thumbed us down, in other words. We immediately stopped, and I informed Alexander—he was riding on the left side of the hind seat of the car, and I was driving—to get out and we’d see who this fellow was.”

  Tapscott looked at the jurors. “Incidentally, Mr. Guidici, prior to that time had you had any description of the person who had been driving the Studebaker car?”

  “No,” Guidici answered. “Some young fellow was all.”

  “What description, if any, did you have as to how he was dressed?”

  “Some fellow with light shirt and rather dark pair of pants.”

  “Just where did you overtake this person on the highway?”

  “Oh, it’s the last slope going to Dunphy.”

  “About how far would that be from Dunphy?”

  “From Dunphy,” Guidici thought a moment, “I suppose about five miles east of Dunphy.”

  “How were you traveling?”

  “Traveling by automobile.”

  “Is the person you saw at that time and overtook, present here in court?”

  “Yes, sir,” Guidici answered.

  “Will you point him out please?”

  Guidici pointed toward Floyd. “This here alongside of Mr. Wines.”

&nb
sp; “Do you refer to the defendant Floyd Loveless?”

  “Floyd Loveless, yes, sir.”

  “Tell what transpired, what happened, what you did upon overtaking this individual?”

  “Well, immediately after we stopped, I told Alexander to get out of the car— he was the handiest—and we were going pretty slow. Immediately, I followed, both together. Alexander walked up in front of him and told him to put up his hands, and which he started to raise both hands and he later lowered his right hand and put it in his right trouser pocket, and being commanded to raise both arms, he complied, and Alexander searched his pockets for a gun. He didn’t have any in his pockets, and later we found a gun in his shirt, inside his shirt.”

  “What kind of a gun? Will you describe it to the jury?”

  Guidici turned to face the jurors and said, “It’s a U.S. .38 revolver.”

  “At that time you took it from the defendant was it loaded?”

  “It was, yes, sir.”

  “How many shells would it hold?”

  “Five.”

  The revolver was identified through serial numbers and introduced as State’s Exhibit Number One.

  “Now at the time that you overtook the defendant and searched him, did you place him under arrest at that time?”

  “Not right immediately, no.”

  “When, if ever, did you place him under arrest?”

  “After questioning him. I ask him, I says ‘Did you have trouble with an officer?’”

  Wines stood. “Just a minute! I object to his giving any conversation at this time. No foundation has been laid. There is no evidence this defendant was under arrest.”

  “He says he was not under arrest,” Judge Dysart said. “He just stepped out and spoke to this man. You may say who was present.”

  “Who was present Mr. Guidici? I believe we’ve already covered that.”

  “Deputy Sheriff Frank Goicoechea, Deputy Sheriff Alexander also special officer for the SP [Southern Pacific] and Dino Aiazzi.”

  Dysart asked, “Were you all out of the car at that time?”

  “We were all out of the car at that time, yes, sir.”

  “Very well,” Judge Dysart said.

  “What was the conversation you had?” Tapscott asked.

  “After we found the gun, we asked him, ‘Did you have trouble with an officer?’ and he says, ‘No, sir.’ And I says, ‘Young fellow, you better tell the truth.” And he says, ‘Yes, sir, I shot—”

  “Just a moment, please,” Wines interjected. “I think the conversation now has gotten beyond the stage of preliminary questions by an officer, and no foundation has been laid for the conversation.”

  “Well, the objection is overruled,” Judge Dysart said. And then, turning to the witness, he added, “And you may proceed with what was said.”

  “May I cross-examine the witness first?” Wines asked.

  The judge answered. “You may when the time comes, Mr. Wines. But let’s let Mr. Tapscott finish with this man.”

  After lunch recess, Wines began his cross-examination of Guidici.

  “At the time you drove up to this young fellow on the road, what did you do?”

  “Alexander was in back of him, and I went up in front of him. And in the meantime, Alexander was searching and found his gun in his shirt and handed it over to me.”

  “Did anyone have a gun in his hand?”

  “I thought Alexander did when he walked up to him which he did when he walked up to him, but when he searched, he put his gun back in his pocket.”

  “Isn’t this the gist of the conversation as you related it at the preliminary examination?” Wines asked.

  “I object to that,” Tapscott said. “The foundation has not been laid for the use of that transcript. It hasn’t been established that it the official transcript.”

  “He can asked him if he so testified, and if he wants to see the transcript, he may look at it,” Judge Dysart said.

  “Do you want to see this transcript?” Wines asked.

  “No, not necessarily,” Guidici answered.

  “‘I said, “Did you have some trouble with the officer?” And he said, “No.” And I says, “You shot the officer. You had better tell us right away you had trouble with him.”’ Did you make that statement?” Wines asked.

  Guidici looked at the attorney. “I told him he had better tell the truth. I asked him if he had trouble with the officer, and he said, ‘No.’”

  “Did you make that statement on preliminary examination?”

  “I don’t remember the wording of it, if that is the wording.”

  Wines asked, “And at the time you made that statement, ‘You better tell the truth.’ Did you have a gun out?”

  “I know Alexander didn’t, and I know I didn’t. I never did have my gun out. And Frank Goicoechea was in back of me, and I couldn’t tell whether he had a gun out or not.”

  “Did you say someone told him to put up his hands?”

  “Yes.”

  “And did they back that command by anything?”

  “Alexander did when Alexander walked up, yes.”

  Wines turned from the witness. “I ask the court that the testimony of Mr. Guidici concerning the conversation with this defendant be stricken on the grounds that it amounts to a confession and the proper foundation has not been laid. It shows that the conversation was extorted at the point of a gun and after admonishing him, ‘You better tell the truth.’ And all the authorities will sustain—”

  “The motion is denied,” Judge Dysart said.

  “You say that he raised one hand and put one hand in his pocket?”

  “Yes, he dropped one hand down to his right pocket.”

  “Did you afterwards look in that pocket?”

  “Yes, he was searched. Alexander searched him.”

  “And did he find anything in that pocket?”

  “No, not in that pocket.”

  “Did he make any threatening gestures?”

  “No.”

  The promised FBI ballistics expert was not called to identify the gun; the inside of the barrel was so rusted that each shot made different marks.

  Sheriff C.A. Harper was called to the stand. After a few questions to Harper, Tapscott proceeded to lay the groundwork for evidence that was sure to seal the defendant’s doom—namely, Floyd’s Loveless’s confession.

  “Now, Mr. Harper,” Tapscott began, “going back to the defendant Floyd Loveless, when did you next see him after the evening of August 20, if ever?”

  “On the morning of August 21,” Harper answered.

  “At what place?”

  “He was taken out of the jail and taken up in the sheriff’s office.”

  “At about what time?”

  “At about 11:30 a.m., August 21, 1942.”

  “Who all was present at the time he was brought into your office?”

  Sheriff Harper looked down at a piece of paper before answering. “Yourself, Mr. Tapscott and S.O. Guidici, W.F. Boebert, Harriet Williams, Floyd Loveless and myself,”

  Tapscott looked at Floyd and then handed the witness a paper. “Will you identify this, Mr. Harper?”

  “That is a confession made by Floyd Loveless at that time.”

  “Will you state the conversation that preceded the making of the confession as to all questions asked and answers given?”

  “I informed Floyd Loveless that I was C.A. Harper, that I was sheriff of Elko County, and I was about to ask him some questions. Before those questions were asked of him, I would inform him that he was accused of shooting an officer with a gun and that the officer—and that if the officer died, he would probably face a charge for that offense. That he was informed that he need not make a statement; that anything he might say might be used against him; that he was offered no inducement. No offer of reward, no threats were made against him, nor was he not compelled in any way. He was entitled to an attorney at his own expense. He was informed that those were his rights and asked if he wished t
hen to make a statement.”

  “And what was his answer to that?

  “He stated that he did.”

  “State whether or not the statement is signed,” Tapscott said.

  Harper nodded. “It is.”

  “By whom?”

  “Floyd Loveless.”

  “When and where was that signed?”

  “The statement was signed on the twenty-second day of August 1942 in the presence of Delpha M. Jewell, notary public, and also carries her seal of notarization. Before the document was signed, the questions were asked Floyd by Miss Jewell if he was compelled—being compelled, in any way, to sign the confession. He said, ‘No.’ She asked him if he was signing the confession freely and voluntarily. He said he was. She asked him if the contents of the confession were true, and he said it was.”

  Taylor Wines was on his feet. “I move that testimony be stricken on the ground it is hearsay.”

  “Objection overruled,” Judge Dysart said. “It was in the presence of the defendant.”

  Tapscott then read Floyd’s confession to the court and entered it into the testimony. When he tried to get Constable Berning’s statement read into the record, Wines objected again. The objection was sustained. Berning hadn’t realized that his death was imminent when he made the statement, so it could not be used as a dying declaration.

  The next day would have been Constable A.H. Berning’s fifty-seventh birthday.

  “I pulled my gun, intending to hit him on the head, when he grabbed it and tried to take it away. I pulled the trigger and shot him, but he kept right on trying to get the gun, and in the struggle, the gun was fired again, and he fell over. I then started out to take him to the doctor.”

  Floyd broke down sobbing as Tapscott read his statement.

  The jury was unmoved. It reached its verdict in less than fifteen minutes.

  Floyd and Wines rose to face the jury. None of the twelve men looked at Floyd as the verdict was read: guilty as charged. The words echoed in his head. Guilty! He kept his face expressionless.

  “Can we do anything?” he whispered to Wines.

  “We can appeal after sentencing.”

  Before Wines could say more, deputies whisked Floyd from the courtroom. Taylor Wines shuffled papers into his briefcase. He hadn’t expected any different. But there was still hope.

  According to the Elko Free Press of September 30, 1942: “The fate of the 16 year old Indiana boy was sealed yesterday when he admitted upon the stand that he had shot Constable Berning twice and when his record, which astounded spectators and jurors alike, was read into the record by District Attorney Tapscott.”