CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 2. PRESENTMENTS AND INDICTMENTS.
§62-2-1. Prosecutions to be by presentment or indictment.
Prosecutions for offenses against the state, unless otherwise
provided, shall be by presentment or indictment. The trial of a
person on a charge of felony shall always be by indictment; and
indictment may be found in the first instance, whether the accused
has been examined or committed by a justice or not.
§62-2-2. When name of prosecutor, etc., to be affixed to
indictment, etc.; requiring security for costs from
In a prosecution for a misdemeanor, the name of the
prosecutor, if there be one, and the county of his residence, shall
be written at the foot of the presentment or indictment, when it is
made or found; and, for good cause, the court may require a
prosecutor to give security for the costs, and, if he fail to do
so, dismiss the prosecution at his costs.
§62-2-3. When costs assessed against prosecutor.
If any proceeding for an offense, had or moved at the instance
of a prosecutor, be dismissed, or the accused discharged from the
accusation, the court or justice before whom the proceeding is may
give judgment against the prosecutor in favor of the accused for
§62-2-4. Indictment for perjury; admissibility of certain records,
etc., as evidence.
In an indictment or accusation of perjury or subornation of
perjury, it shall be sufficient to state the substance of the
offense charged against the accused, and in what court or by whom
the oath was administered which is charged to have been falsely
taken, and to make an averment that such court or person had
competent authority to administer the same, together with the
proper averments to falsify the matter wherein the perjury is
assigned, without setting forth any part of any record or
proceeding at law or equity, or the commission or authority of the
court or person before whom the perjury was committed; but nothing
herein shall be construed to allow, without the consent of the
accused, a part only of the record, proceeding or writing to be
given in evidence on the trial of such indictment or accusation.
§62-2-5. Indictment for embezzlement; description and proof of
money in prosecutions for embezzlement and other
In a prosecution against a person accused of embezzling, or
fraudulently converting to his own use, bullion, money, bank notes,
or other security for money, it shall be lawful, in the same
indictment, to charge and thereon to proceed against the accused,
for any number of distinct acts of such embezzlement or fraudulent
conversion which may have been committed by him within six months
from the first of the last of such acts; and it shall be sufficient
to allege the embezzlement or fraudulent conversion to be of money,
bullion, bank notes, or security for money without specifying the
particular kind of money, bank notes, bullion or security for
money, as the case may be; and such allegation, so far as it
regards the description of the property, shall be sustained, if the
accused be proved to have embezzled or fraudulently converted to
his own use, any bullion, money, bank notes, or security for money
(although the particular item or thing embezzled or converted be
neither alleged nor proved).
And in any indictment, warrant or information in which it is
necessary to describe money current in this state, a description of
such money as "United States currency" will be sufficient without
specifying the number and denomination thereof, and such
description shall be construed to mean national bank notes, United
States treasury notes, federal reserve notes, certificates for
either gold or silver coin, fractional coin, currency, or any other
form of money issued by the United States government and current as money in this state.
§62-2-6. Indictment for forgery.
In a prosecution for forging, or altering, or attempting to
employ as true, any forged instrument or other thing, and in a
prosecution for any of the offenses mentioned in article four,
chapter sixty-one of this code, it shall not be necessary to set
forth any copy or facsimile of such instrument or other thing, but
it shall be sufficient to describe the same in such manner as would
sustain an indictment for stealing such instrument or other thing,
supposing it to be the subject of larceny.
§62-2-7. Proof of possession of or title to property.
In a prosecution for an offense committed upon or relating to
or affecting real estate, or for stealing, embezzling, destroying,
injuring, or fraudulently receiving or concealing, any personal
estate, it shall be sufficient to prove that when the offense was
committed, the actual or constructive possession, or a general or
special property in the whole or any part of such estate, was in
the person or community alleged in the indictment or other
accusation to be the owner thereof.
§62-2-8. Allegations of intent to injure, cheat or defraud.
Where an intent to injure, defraud, or cheat is required to
constitute an offense, it shall be sufficient, in an indictment or
accusation therefor, to allege generally an intent to injure,
defraud, or cheat, without naming the person intended to be
injured, defrauded, or cheated, and it shall be sufficient, and not
deemed a variance, if there appear to be any intent to injure,
defraud, or cheat the United States, or any state, or any county,
corporation, officer or person.
§62-2-9. Unnecessary allegations may be omitted.
All allegations, unnecessary to be proved, may be omitted in
any indictment or other accusation.
§62-2-10. Defects not invalidating indictment.
No indictment or other accusation shall be quashed or deemed
invalid for omitting to set forth that it is upon the oaths of the
jurors, or upon their oaths and affirmation; or for the insertion
of the words "upon their oath," instead of "upon their oaths"; or
for not in terms alleging that the offense was committed "within
the jurisdiction of the court," when the averments show that the
case is one of which the court has jurisdiction; or for the
omission or misstatement of the title, occupation, estate or degree
of the accused, or of the name or place of his residence; or for
omitting the words "with force and arms," or the statement of any
particular kind of force and arms; or for omitting to state, or
stating imperfectly, the time at which the offense was committed,
when time is not of the essence of the offense; or for failing to
allege the value of an instrument which caused death, or to allege
that it was of no value; or for omitting to charge the offense to
be "against the form of the statute," or statutes; or for the
omission or insertion of any other words of mere form or
surplusage. Nor shall it be abated for any misnomer of the
accused; but the court may, in case of misnomer appearing before or
in the course of a trial, forthwith cause the indictment or
accusation to be amended according to the fact.
§62-2-11. Defects cured by verdict.
Judgment in any criminal case, after a verdict, shall not be
arrested or reversed upon any exception to the indictment or other
accusation, if the offense be charged therein with sufficient
certainty for judgment to be given thereon, according to the very
right of the case.
§62-2-12. Discharge of imprisoned person upon failure to indict
within certain time; person not indicted by reason of
A person in jail, on a criminal charge, shall be discharged
from imprisonment if he be not indicted before the end of the
second term of the court, at which he is held to answer, unless it
appear to the court that material witnesses for the state have been
enticed or kept away, or are prevented from attendance by sickness
or inevitable accident, and except also that, when a person in
jail, on a charge of having committed an indictable offense, is not
indicted by reason of his insanity at the time of committing the
act, the grand jury shall certify that fact to the court; whereupon
the court may order him to be sent to a state hospital for the
insane, or to be discharged.
§62-2-13. Process, capias and summons in criminal cases.
When an indictment or presentment is found or made, the court
shall award process against the accused to answer to the same, if
he be not in custody. Such process, if for a felony, may be a
capias or a summons, at the discretion of the court; in all
misdemeanor cases, it shall be, in the first instance, a summons,
but if a summons be returned executed, or be returned not found,
and the defendant does not appear, the court may award a capias.
§62-2-14. Direction and execution of process; several writs
against same person.
The fifth and eleventh sections of article three, chapter
fifty-six of this code shall apply to process in criminal as well
as in civil cases. Any summons to answer an indictment for a
misdemeanor may be served as a notice is served under the first
section of article two, chapter fifty-six of this code. The court
may, in the same case against the same person, award at the same
time, or different times, several writs of summons or capias,
directed to officers of different counties.
§62-2-15. Mailing of process by clerk to officer.
The clerk of every court shall forward by mail all process
issued for the state, directed to the officer of any county other
than his own, and pay the postage thereon, which, on being duly
certified by the court, shall be paid out of the county treasury.
§62-2-16. Execution of process within state.
When process of arrest in a criminal prosecution is issued
from a court during its session, either against a party accused or
a witness, the officer to whom it is directed or delivered may
execute it in any part of the state.
§62-2-17. Delivery of prisoner to court, magistrate or jailer.
An officer who, under a capias from a court, arrests a person
accused of an offense other than murder in the first degree shall
deliver the accused to such court, if sitting, and if such court is
not sitting, the officer shall deliver the accused to a magistrate
who may admit the accused to bail: Provided,
That any such bail
granted by a magistrate shall be conditioned upon the appearance by
the accused before the court on the date provided in the capias for
such appearance, or, if no such date is provided in the capias,
then such bail shall be conditioned upon the appearance of the
accused on the next day on which such court is sitting. No
magistrate shall admit to bail any person arrested under an alias
capias. Bail set by a magistrate may be made and posted before the
magistrate court clerk and the recognizance and record thereof,
together with any money received therefor, shall be forthwith
delivered to the clerk of the circuit court.
An officer who, under a capias from a court, arrests a person
accused of an offense not bailable, or for which bail is not given,
shall deliver the accused to such court, if sitting, or to the
jailer thereof, who shall receive and imprison him.
Acts, 1965 Reg. Sess., Ch. 38.
§62-2-19. Prosecutions relating to license taxes, offenses against
public policy, etc.
On any indictment or presentment founded on any provision of
article twelve, chapter eleven, or article ten, chapter sixty-one
of this code, or for any statutory misdemeanor for which no
imprisonment may be inflicted, process may be issued immediately,
returnable forthwith. If the accused appear and plead to the
charge, the trial shall proceed without delay. If, being summoned,
he fail to appear and plead, the court may render judgment in the
same manner as if he had confessed to the charge in court; and if
the offense be punishable by a fine not fixed by law, a jury shall
be impaneled to assess the same.
§62-2-20. Exceptions to indictments relating to license taxes and
offenses against public policy.
No exceptions shall be allowed for any defect or want of form
in any presentment or indictment founded on any provision of
article twelve, chapter eleven, or article ten, chapter sixty-one
of this code, but the court shall give judgment thereon according
to the very right of the case.
§62-2-21. Second capias or trial after summons in misdemeanor
cases not covered in §62-2-19.
In prosecutions for misdemeanors, in cases not embraced in
section nineteen of this article, if a capias be returned not
found, after a summons is returned executed, or if the accused was
admitted to bail and make default, the court may either award a new
capias, or proceed to trial in the same manner as if the accused
had appeared and pleaded not guilty.
§62-2-22. Discontinuance of criminal prosecution for failure to
award process or enter continuance.
There shall be no discontinuance of any criminal prosecution
by reason of the failure of the court to award process, or to enter
a continuance on the record.
§62-2-23. Prosecutions against corporations; effect of failure of
corporation to appear.
On any indictment or presentment against a corporation, if a
summons be served according to the provisions of sections thirteen
or fourteen, article three, chapter fifty-six of this code, and the
defendant fail to appear, the court may proceed to trial and
judgment without further process, as if the defendant had appeared
and pleaded not guilty. And where, in any such case, the
publication of a copy of the process is required according to said
section, the expense of such publication may be certified by the
court to the auditor, and shall be paid out of the treasury of the
state; but the same shall be taxed with other costs, and collected
from the defendant, if judgment be for the state, and be paid into
the treasury of the state by the officer collecting the same.
§62-2-24. Joinder of certain counts.
A count for receiving stolen goods or for embezzlement may be
joined with a count for larceny, in the same indictment; and a
count for false swearing may be joined with a count for perjury, in
the same indictment.
§62-2-25. Compromise or suppression of indictment or presentment.
If any prosecuting attorney shall compromise or suppress any
indictment or presentment without the consent of the court entered
of record, he shall be deemed guilty of malfeasance in office, and
may be removed therefrom in the mode prescribed by law.
Note: WV Code updated with legislation passed through the 2012 1st Special Session