CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 3. TRIAL OF CRIMINAL CASES.
§62-3-1. Time for trial; depositions of witnesses for accused;
counsel, copy of indictment, and list of jurors for
accused; remuneration of appointed counsel.
When an indictment is found in any county, against a person
for a felony or misdemeanor, the accused, if in custody, or if he
appear in discharge of his recognizance, or voluntarily, shall,
unless good cause be shown for a continuance, be tried at the same
term. If any witness for the accused be a nonresident of the
state, or absent therefrom in any service or employment, so that
service of a subpoena cannot be had upon him in this state, or is
aged or infirm so that he cannot attend upon the court at the
trial, the accused may present to the court in which the case is
pending, or to the judge thereof in vacation, an affidavit showing
such facts, and stating therein what he expects to prove by any
such witness, his name, residence, or place of service or
employment; and if such court or judge be of the opinion that the
evidence of any such witness, as stated in such affidavit, is
necessary and material to the defense of the accused on his trial,
an order may be made by such court or judge for the taking of the
deposition of any such witness upon such notice to the prosecuting
attorney, of the time and place of taking the same, as the court or
judge may prescribe; and in such order the court or judge may
authorize the employment of counsel, practicing at or near the
place where the deposition is to be taken, to cross-examine the
witness on behalf of the state, the reasonable expense whereof
shall be paid out of the treasury of the state, upon certificate of
the court wherein the case is pending. Every deposition so taken may, on the motion of the defendant, so far as the evidence therein
contained is competent and proper, be read to the jury on the trial
of the case as evidence therein. A court of record may appoint
counsel to assist an accused in criminal cases at any time upon
request. A copy of the indictment and of the list of the jurors
selected or summoned for his trial, as provided in section three of
this article, shall be furnished him, upon his request, at any time
before the jury is impaneled. In every case where the court
appoints counsel for the accused and the accused presents an
affidavit showing that he cannot pay therefor, the attorney so
appointed shall be paid for his services and expenses in accordance
with the provisions of article twenty-one, chapter twenty-nine of
§62-3-1a. Written guilty plea; form; right to counsel; effect of
plea; failure of plea to be signed or witnessed.
When a person under indictment for a crime indicates that he
desires to plead guilty, he may be called upon to sign in open
court a form acknowledging his plea to the indictment or to such
count or counts thereof as he shall designate. Before accepting a
plea of guilty, the court shall satisfy itself by interrogation of
the defendant or his counsel that the defendant has received a copy
of the indictment and understands the nature of the charges. If
the defendant is without counsel, the court shall advise him of his
constitutional right to the assistance of counsel before pleading
to the indictment. If the defendant is an indigent, the court
shall offer to appoint counsel for him. The plea when signed and
witnessed shall become a part of the record of the case. The plea
shall be sufficient if it is substantially in the following form:
A. If the defendant is represented by counsel:
STATE OF WEST VIRGINIA
In the presence of ....................., my counsel, who has
fully explained the charges contained in the indictment against me
and having received a copy of the indictment before being called
upon to plead, I hereby plead guilty to said indictment and each
(Counsel for Defendant)
B. If the defendant has waived counsel:
STATE OF WEST VIRGINIA
I certify that I have been advised of my constitutional right
to the assistance of counsel; that I have no money to employ
counsel; that I have been offered counsel at no cost to me; and
that I have given up my right to have counsel provided to assist
I have received a copy of the indictment before being called
upon to plead. It has been read or explained to me and I fully
understand the nature of the charges against me, including the
penalties that the court may impose.
I hereby plead guilty to said indictment and each count
The plea when signed and witnessed shall constitute prima facie evidence that the defendant was fully advised of his rights
as herein provided, and that his plea was properly entered. The
neglect or failure to cause a plea to be signed or witnessed shall
not invalidate the plea or any judgment rendered thereon, provided
the record otherwise discloses that the defendant was advised of
his rights and that the plea was otherwise properly entered.
§62-3-2. Presence of accused during trial; arraignment; plea.
A person indicted for felony shall be personally present
during the trial therefor. If he refuse to plead or answer, and do
not confess his guilt, the court shall have the plea of not guilty
entered, and the trial shall proceed as if the accused had entered
that plea, and judgment upon the verdict in any such trial shall be
entered up as in cases of misdemeanor. The formal arraignment of
the prisoner, the proclamation by the sheriff, and the charge of
the clerk to the jury, as heretofore practiced, shall be dispensed
§62-3-3. Selection of jury in felony cases; striking jurors;
In a case of felony, twenty jurors shall be drawn from those
in attendance for the trial of the accused. If a sufficient number
of jurors for such panel cannot be procured in this way, the court
shall order others to be forthwith summoned and selected, until a
panel of twenty jurors, free from exception, be completed, from
which panel the accused may strike off six jurors and the
prosecuting attorney may strike off two jurors. The prosecuting
attorney shall first strike off two jurors, and then the accused
six. If the accused failed to strike from such panel the number of
jurors this section allows him to strike, the number not stricken
off by him shall be stricken off by the prosecuting attorney, so as
to reduce the panel to twelve, who shall compose the jury for the
trial of the case.
Whenever, in the opinion of the court the trial is likely to
be a protracted one, the court may direct that not more than four
jurors, in addition to the regular jury, be called and impanelled
to sit as alternate jurors. Alternate jurors in the order in which
they are called shall replace jurors who, prior to the time the
jury retires to consider its verdict, become unable or disqualified
to perform their duties. Alternate jurors shall be drawn in the
same manner, shall have the same qualifications, shall be subject
to the same examination and challenges, shall take the same oath
and shall have the same functions, powers, facilities and
privileges as the regular jurors. An alternate juror who does not
replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to one peremptory
challenge in addition to those otherwise allowed by law if one or
two alternate jurors are to be impanelled, and two peremptory
challenges if three or four alternate jurors are to be impanelled.
The additional peremptory challenges may be used against an
alternate juror only, and the other peremptory challenges allowed
by this section may not be used against an alternate juror.
§62-3-4. Challenge of jurors.
No challenge of a juror other than that provided for in the
preceding section shall be allowed the state or the accused, except
for cause, and all challenges shall be tried by the court in which
they are made.
Acts, 1965 Reg. Sess., Ch. 40.
§62-3-6. Custody of jury; board and lodging of jurors;
conversation with jurors.
After a jury in a case of felony is impaneled and sworn, the
court, in its discretion, may order the jury to be placed in the
custody of the sheriff or other officer or officers designated by
the court until the jury agree upon a verdict or are discharged by
the court. While a jury is in the custody of the sheriff or other
officer or officers as herein provided, they shall be furnished
with suitable board and lodgings by the sheriff or other officer.
After a jury has been impaneled no sheriff or other officer shall
converse with, or permit anyone else to converse with, a juror
unless by leave of the court. When the court orders a jury to be
placed in the custody of the sheriff or other officer or officers,
the court shall, in its discretion, determine the manner in which
such jury shall be kept in custody by the sheriff or other officer
or officers until the jury agree upon a verdict or are discharged
by the court.
§62-3-7. Filling vacancy in jury; discharge of jury.
If a juror, after he is sworn, be unable, from any cause, to
perform his duty, the court may, in its discretion, cause another
qualified juror to be sworn in his place. And in any criminal case
the court may discharge the jury, when it appears that they cannot
agree in a verdict, or that there is manifest necessity for such
§62-3-8. Jury for defendants indicted and tried jointly; jury for
separate trials of persons jointly indicted.
Persons indicted and tried jointly, for a felony, shall be
allowed to strike from the panel of jurors not more than six
thereof, and only such as they all agree upon shall be stricken
therefrom; and if they cannot agree upon the names to be so
stricken off, the prosecuting attorney shall strike therefrom a
sufficient number of names to reduce the panel to twelve. If
persons jointly indicted elect to be, or are, tried separately, the
panel in the case of each shall be made up as provided in the third
section of this article.
Acts, 1974 Reg. Sess., Ch. 66.
Acts, 1947 Reg. Sess., Ch. 62.
Acts, 1947 Reg. Sess., Ch. 62.
Acts, 1947 Reg. Sess., Ch. 62.
§62-3-13. Change of venue.
A court may, on the petition of the accused and for good cause
shown, order the venue of the trial of a criminal case in such
court to be removed to some other county. When the venue is so
changed, the court making the order shall recognize the witnesses
and the accused (if the offense be bailable and bail be given) to
appear on some certain day before the court to which the case is
removed; if the offense be not bailable, or the bail required be
not given, the court shall remand him to its own jail, and order
its officer to remove him thence to the jail of the court to which
the case is so removed, so that he shall be there before the day
for the appearance of the witnesses. The clerk of the court that
orders a change of venue shall certify copies of such recognizance,
and of the record of the case, to the clerk of the court to which
the case is removed; and such court shall proceed with the case as
if the prosecution had been originally therein, and for that
purpose the certified copies aforesaid shall be sufficient.
§62-3-14. Conviction of part of offense charged in indictment.
If a person indicted for a felony be by the jury acquitted of
part and convicted of part of the offense charged, he shall be
sentenced by the court for such part as he is so convicted of, if
the same be substantially charged in the indictment, whether it be
felony or misdemeanor.
§62-3-15. Verdict and sentence in murder cases.
If a person indicted for murder be found by the jury guilty
thereof, they shall in their verdict find whether he or she is
guilty of murder of the first degree or second degree. If the
person indicted for murder is found by the jury guilty thereof, and
if the jury find in their verdict that he or she is guilty of
murder of the first degree, or if a person indicted for murder
pleads guilty of murder of the first degree, he or she shall be
punished by imprisonment in the penitentiary for life, and he or
she, notwithstanding the provisions of article twelve, chapter
sixty-two of this code, shall not be eligible for parole:
That the jury may, in their discretion, recommend mercy,
and if such recommendation is added to their verdict, such person
shall be eligible for parole in accordance with the provisions of
said article twelve, except that, notwithstanding any other
provision of this code to the contrary, such person shall not be
eligible for parole until he or she has served fifteen years:
That if the accused pleads guilty of murder of
the first degree, the court may, in its discretion, provide that
such person shall be eligible for parole in accordance with the
provisions of said article twelve, and, if the court so provides,
such person shall be eligible for parole in accordance with the
provisions of said article twelve in the same manner and with like
effect as if such person had been found guilty by the verdict of a
jury and the jury had recommended mercy, except that,
notwithstanding any provision of said article twelve or any other
provision of this code to the contrary, such person shall not be eligible for parole until he or she has served fifteen years.
§62-3-16. Verdicts jury may find on indictments for homicide or
On an indictment for felonious homicide, the jury may find the
accused not guilty of the felony, but guilty of involuntary
manslaughter. And on any indictment for maliciously shooting,
stabbing, cutting, or wounding a person, or by any means causing
him bodily injury, with intent to kill him, the jury may find the
accused not guilty of the offense charged, but guilty of
maliciously doing such act with intent to maim, disfigure, or
disable, or of unlawfully doing it, with intent to maim, disfigure,
disable, or kill, such person.
§62-3-17. Verdicts jury may find in prosecution for larceny.
In a prosecution for grand larceny, if it be found that the
thing stolen is of less value than fifty dollars, the jury may find
the accused guilty of petit larceny, except in cases where it is
otherwise provided; and in a prosecution for petit larceny, though
the thing stolen be of the value of fifty dollars or more, the jury
may find the accused guilty; and in either case he shall be
sentenced for petit larceny.
§62-3-18. Conviction of attempt on trial for felony; effect of
general verdict of not guilty.
On an indictment for felony, the jury may find the accused not
guilty of the felony, but guilty of an attempt to commit such
felony; and a general verdict of not guilty upon such indictment
shall be a bar to a subsequent prosecution for an attempt to commit
§62-3-19. Faulty counts in indictment.
Where there are several counts in an indictment, and a general
verdict of guilty is found, judgment shall be entered against the
accused, if any count be good, though others be faulty. But on the
trial, the court may, on motion of the accused, instruct the jury
to disregard any count that is faulty.
§62-3-20. Verdict and judgment in joint trial.
Where two or more persons are charged and tried jointly, the
jury may render a verdict as to any of them as to whom they may
agree; whereupon judgment shall be entered according to the
verdict; and as to the others the case shall be tried by another
§62-3-21. Discharge for failure to try within certain time.
Every person charged by presentment or indictment with a
felony or misdemeanor, and remanded to a court of competent
jurisdiction for trial, shall be forever discharged from
prosecution for the offense, if there be three regular terms of
such court, after the presentment is made or the indictment is
found against him, without a trial, unless the failure to try him
was caused by his insanity; or by the witnesses for the state being
enticed or kept away, or prevented from attending by sickness or
inevitable accident; or by a continuance granted on the motion of
the accused; or by reason of his escaping from jail, or failing to
appear according to his recognizance, or of the inability of the
jury to agree in their verdict; and every person charged with a
misdemeanor before a justice of the peace, city police judge, or
any other inferior tribunal, and who has therein been found guilty
and has appealed his conviction of guilt and sentence to a court of
record, shall be forever discharged from further prosecution for
the offense set forth in the warrant against him, if after his
having appealed such conviction and sentence, there be three
regular terms of such court without a trial, unless the failure to
try him was for one of the causes hereinabove set forth relating to
proceedings on indictment.