Chapter 52. JURIES.

§1. Persons Liable to Service.—All male persons who are twenty-one years of age, and not over sixty-five, and who are citizens of this State, shall be liable to serve as jurors, except as hereinafter provided.(Code 1849, c. 162, §1; 1852-3, c. 27; Code 1860, c. 162, §1; Code 1868, c. 116, §1; 1871, c. 50, §1; 1872-3, c. 47, §1; 1882, c. 83, §1; 1891, c. 42, §1; Code 1923, c. 116, §1; 1927, c. 62, §1; 1929, c. 32, §1.)

§2. Exemptions.—The following persons shall be exempt from serving on juries: Licensed practicing attorneys, licensed practicing physicians and dentists, registered practicing pharmacists, postmasters, all persons employed in the actual care and conveyance of the mails of the United States, officers of any court, justices of the peace, constables, all state, county and Federal officers, all officers and employees of the department of public safety, all officers and members of the national guard of West Virginia while in actual service, all telegraph operators actually engaged as such in any office in this State, ministers of the gospel, superintendents, officers and assistants of hospitals, prisons and jails, conductors and engineers of railways, the members of any regularly organized fire or police department in any city, town or village, all persons in the army or navy or volunteer force of the United States, all professors, tutors and pupils of institutions of learning while such institutions are actually in session, idiots, lunatics, paupers, vagabonds, habitual drunkards, and persons convicted of infamous crimes.(Code 1849, c. 162, §2; 1852-3, c. 27, §2; 1860, c. 162, §2; Code 1868, c. 116, §2; 1872-3, c. 47, §2; 1882, c. 83, §2; 1891, c. 42, §2; 1897, c. 61, §97; 1899, c. 56, §2; 1919, c. 25, §2; Code 1923, c. 18, §97, c. 116, §2.)

§3. Appointment and Qualification of Jury Commissioners.—There shall be two jury commissioners of the circuit court of each county. They shall be of opposite politics, citizens of good standing, residents in the county for which they are appointed, and well known members’ of the principal political parties thereof; but the chairman of any political party shall be ineligible to appointment, and no jury commissioner shall be eligible to reappointment after he shall have served four consecutive years. They shall be appointed by the circuit court, or the judge thereof in vacation, of their respective counties. Their term of office shall be four years, and shall commence on the first day of June next after their appointment. The jury commissioners appointed by the circuit court or the judge thereof, in office when this Code takes effect, shall continue in office, unless removed, until the expiration of their respective terms of office, and their successors shall be appointed, as aforesaid, alternately, so that a period of two years shall intervene between the dates when the terms of office of the two commissioners shall be gin and expire. They may be removed from office by the court or judge having the power of appointment, for official misconduct, incompetency, habitual drunkenness, neglect of duty or gross immorality. Vacancies caused by death, resignation or otherwise, shall be filled for the unexpired term in the same manner as the original appointments. They shall receive five dollars a day for each day necessarily employed as such jury commissioners, payable out of the county treasury upon the order of the circuit court. Before entering upon the discharge of his duties, a jury commissioner shall take and subscribe, before the Clerk of the circuit court, who is hereby authorized to administer the same, an oath, to be filed and preserved by him in his office, to the following effect:

State of West Virginia, County of............. , to-wit:

I, A........................B......................, do solemnly swear that I will support the Constitution of the United States and the Constitution of this State and will faithfully discharge the duties of jury commissioner to the best of my skill and judgment, and that I will not place any person upon the jury list in violation of law, or out of fear, favor or affection.

There shall be two jury commissioners for every court of limited jurisdiction, who shall be appointed by such courts, or the judges thereof in vacation, respectively, and whose terms of office and compensation shall be the same as jury commissioners of the circuit courts. The same powers conferred and duties imposed by this article upon the circuit courts, or the judges thereof in vacation, and upon the clerks and jury commissioners of the circuit courts, are hereby conferred and imposed upon every court of limited jurisdiction and the judges thereof respectively, and upon the clerks and jury commissioners of such courts of limited jurisdiction.(1852-3, c. 27, §6; Code 1860, c. 162, §4; 1863, c. 93, §4; 1867, c. 35; Code 1868, c. 116, §3; 1871, c. 50; 1872-3; c. 47, §7; 1882, c. 83, §3; 1890, c. 15; 1891, c. 42, §3; 1915, c. 77, §3; 1917, c. 99, §3; 1919, c. 124, §3; Code 1923, c. 116, §3; 1927, c. 62, §3; 1929, c. 32, §3.)

§4. Record of Proceedings; Preparation of Jury List.—The jury commissioners shall keep in a well-bound book a record of the proceedings to be preserved by the clerk of the circuit court in his office. The jury commissioners of each county shall, annually, at the levy term of the county court thereof, and at any other time when required by the circuit court of such county, without reference to party affiliations, prepare a list of such inhabitants of the county, not exempted as aforesaid, as they shall think well qualified to serve as jurors, being persons of sound judgment, of good moral character, and free from legal exception, which list shall include not less than two hundred nor more than one thousand persons, but the circuit court of the county may, at any time, direct such commissioners to prepare a list of such inhabitants, not exempt as aforesaid, being any number between two hundred and one thousand, which, in the discretion of the court, it may deem proper: Provided, however, That in counties having a population of fifty thousand or more, the jury commissioners shall be required to have at least eight hundred names in such list. The name of no person shall be put on such list who shall have been drawn and who actually served as a petit juror within a period of two years prior thereto, or who shall have requested the jury commissioners or either of them, by himself or another person, to have his name placed on such list; and any such person shall be disqualified from serving as a juror for the period of two years from the date of such service or from the time of making such request: Provided, That in any county wherein there is a criminal or intermediate court or court of common pleas, service on a petit jury in any such court shall not exempt a juror from jury service in the circuit court, nor vice versa.(1852-3, c. 27, §6; Code 1860, c. 162, §4; 1863, c. 93, §4; 1867, c. 35, §1; Code 1868, c. 116, §3; 1871, c. 50, §3; 1872-3, c. 47, §7; 1882, c. 83, §3; 1890, c. 15, §3; 1891, c. 42, §3; 1915, c. 77, §3; 1917, c. 99, §3; 1919, c. 124, §3; Code 1923, c. 116, §3; 1927, c. 62, §3; 1929, c. 32, §3.)

§5. Custody of List of Jurors; Striking off Names.—The list so prepared shall be delivered to the clerk of the circuit court, and by him be safely kept. It shall be subject to inspection only by the circuit court, or the jury commissioners, or the clerk of such court, as hereinafter prescribed. Such court, or the jury commissioners, may strike from such list the name of any person who has been convicted of any scandalous offense, or been guilty of any gross immorality, and substitute another in his place.(1852-3, c. 27, §7; Code 1860, c. 162, §5; 1863, c. 93, §5; Code 1868, c. 116, §4; 1871, c. 50, §4; 1872-3, c. 47, §8; 1882, c. 83, §4; 1891, c. 42, §4; Code 1923, c. 116, §4.)

§6. Preparation of Ballots; Custody There of.—At the time such list is made out, the jury commissioners shall also cause all the names upon the same to be fairly written, each on a separate paper or ballot, and shall fold or roll up the ballots so as to resemble each other as nearly as may be, and so that the name written thereon shall not be visible on the outside, and shall deposit the ballots in a secure box, to be prepared for the purpose, which shall be known as the “jury box” and shall be safely kept by the clerk of the circuit court, and shall be opened only by the order of the jury commissioners, or as hereinafter prescribed.(1852-3, c. 27, §8; Code 1860, c. 162, §6; 1863, c. 93, §6; Code 1868, c. 116, §5; 1872-3, c. 47, §9; 1882, c. 83, §5; 1891, c. 42, §5; Code 1923, c. 116, §5.)

§7. Selection of Trial Jurors.—All jurors required for the trial of cases in any circuit court, including cases of felony, shall be selected by drawing ballots from the jury box in the manner prescribed in this article, and the persons whose names are written on the ballots so drawn shall be returned to serve as jurors.(1852-3, c. 27, §9; 1853-4, c. 20, §9; 1860, c. 162, §7; 1863, c. 93, §7; 1867, c. 35, §1; Code 1868, c. 116, §6; 1872-3, c. 47, §10; 1882, c. 83, §6; 1891, c. 42, §6; Code 1923, c. 116, §6.)

§8. Dispensing With Jury for Term; Issuance of Venire Facias; Number of Jurors Summoned.—The circuit court of any county, by order entered of record, or the judge thereof in vacation, by written order to the clerk of such court, at least twenty days before the term, may dispense with a jury for one of the regular terms, and in such case no venire facias shall be issued, and no jury summoned for such term until it is ordered by the court or the judge thereof in vacation. The clerk of every circuit court shall, unless a jury be dispensed with as aforesaid, at least thirty days before any term of such court at which a jury may be wanted, issue a venire facias for thirty jurors, unless the court shall order a greater or less number, in which event the writ shall issue for such other number. Such writ shall require the attendance of the jurors on the first day of the court or on such other day thereof as the court or judge may order. If, in the opinion of any court, a lesser number of jurors than thirty will usually suffice for the convenient dispatch of the business thereof, it shall be the duty of such court to enter such opinion of record, expressing therein the number of jurors proper to be summoned; and thereafter, until otherwise directed, the venire facias shall not require a greater number to be summoned to attend such court.(Code 1849, c. 162, §5; 1852-3, c. 27, §10; 1855-6, c. 38, §10; 1857-8, c. 43, §10; Code 1860, c. 162, §§8, 17; 1863, c. 93, §8; 1867, c. 65, §2; Code 1868, c. 116, §7; 1872-3, c. 47, §§11, 21; 1882, c. 83, §7; 1891, c. 42, §7; Code 1923, c. 116, §7.)

§9. Issuance of Summons to Jury Commissioners.—At the same time the clerk shall issue a summons in the name of the State requiring the jury commissioners to attend at the office of the clerk of the circuit court of such county, on a day named in such summons, which shall be not less than twenty days before such term, for the purpose of drawing the ballots for the number of jurors mentioned in such writ.(1852-3, c. 27, §11; Code 1860, e. 162, §9; 1863, c. 93, §9; 1867, c. 35, §2; Code 1868, c. 116, §8; 1872-3, c. 47, §12; 1882, c. 83, §8; 1891, c. 42, §8; Code 1923, c. 116, §8.)

§10. Service of Summons; Drawing of Jurors; Preparation of List.—The writ of venire facias and summons shall be delivered to the sheriff or other officer acting in lieu of the sheriff, who shall serve the summons on the jury commissioners; and it shall be the duty of the jury commissioners to attend on the day designated in the summons, at the clerk’s office of the circuit court of the county, and, in the presence of the clerk of such court, to draw the proper number of jurors from the jury box, and to make a list thereof to be delivered to the officer serving the summons.(1852-3, c. 27, §12; 1855-6, c. 38, §12; 1857-8, c. 43, §12; Code 1860, c. 162, §10; 1863, c. 93, §10; Code 1868, c. 116, §9; 18723, c. 47, §13; 1882, c. 83, §9; 1891, c. 42, §9; Code 1923, c. 116, §9.)

§11. Special Jury Commissioners; Delivery of List; Summoning the Jurors.—If either, or both, of the jury commissioners fail to attend as required by such summons, the clerk of the circuit court shall appoint a special jury commis sioner or commissioners, having the qualifications herein required, to act in his or their place and stead, for the time being, and such jurors shall be drawn by such commissioners; and it shall be the duty of the clerk of such court to place the list thereof in the hands of the sheriff or other officer authorized to summon them. And it shall be the duty of such officer, at least three days before the time when the jurors are required to attend, to summon each person who s is drawn to attend the sitting of the court at the time and place mentioned in the writ, and make due return thereof, and of the summons aforesaid, to such court, at the opening thereof.(1852-3, c. 27, §12; 1855-6, c. 38, §12; 1857-8, c. 43, §12; Code 1860, c. 162, §10; 1863, c. 93, §10; 1867, c. 35, §2; Code 1868, c. 116, §10; 1872-3, c. 47, §14; 1882, c. 83, §10; 1891, c. 42, §10; Code 1923, c. 116, §10.)

§12. Mode of Drawing Ballots From Box; Destruction of Ballots.—When jurors are to be drawn as aforesaid, the ballots in the jury box shall be shaken and mixed together by one of the jury commissioners, and the other jury comissioner shall openly draw therefrom as many ballots (without inspecting the names written on any until the proper number is drawn) as shall be equal to the number of jurors required; and if any person whose name is so drawn is unable by reason of sickness, absence from home or other cause to attend as a juror, his name shall, at the conclusion of such draft, be returned into the box; or if he be exempted by law, or his name has been stricken from the jury list, the ballot shall be destroyed and another shall be drawn in his stead.(1852-3, c. 27, §13; Code 1860, c. 162, §11; 1863, c. 93, §11; Code 1868, c. 116, §11; 1872-3, c. 47, §15; 1882, c. 83, §11; 1890, c. 15, §11; 1891, c. 42, §11; Code 1923, c. 116, §11.)

§13. Indorsement on Ballots Drawn; Custody of Ballots Drawn; Notation of Jurors Drawn on Jury List.—When any person is drawn and returned to serve as aforesaid, the jury commissioners shall cause to be indorsed on the ballot containing his name the word “drawn,” and shall cause it to be placed in another box to be kept for the purpose in the custody of the clerk of the circuit court, and opened only as hereinafter prescribed; and the date of the draft shall be entered on the list of jurors opposite the name of the person so drawn.(1852-3, c. 27, §14; Code 1860, c. 162, §12; 1863, c. 93, §12; Code 1868, c. 116, §12; 1872-3, c. 47, §16; 1882, c. 83, §12; 1891, c. 42, §12; Code 1923, c. 116, §12.)

§14. When Ballots to be Returned to Jury Box.—When all the ballots in the jury box have been destroyed or placed in the box for the ballots marked “drawn,” except such as contain the names of those who, for the reasons aforesaid, are unable to attend, the last mentioned box shall be opened in the presence of the officers attending to draw jurors, and the ballots therein replaced in the jury box, from which drafts shall thereafter again be made in the manner herein prescribed.(1882, c. 83, §13; c 1891, c. 42, §13; Code 1923, c. 116, §13.)

§15. Summoning Jurors During Term.—Nothing contained in the preceding sections shall prevent any court, in term time, from requiring other jurors to be drawn by the clerk, in the presence of the court, and to be summoned whenever it shall be found necessary for the convenient dispatch of business. But in such case, the list prepared by the jury commissioners under section four of this article shall be exhausted before another list is made. The jurors so summoned shall be required to attend on such days as the court shall direct.(Code 1849, c. 162, §5; 1852-3, c. 27, §16; 1860, c. 162, §14; Code 1868, c. 116, §14; 1872-3, c. 47, §§4, 18; 1882, c. 83, §14; 1891, c. 42, §14; Code 1923, c. 116, §14.)

§16. Penalty for Failure of Jurors to Attend.—If any person duly summoned to attend as a juror in any court shall neglect to attend, without any sufficient excuse, he shall pay a fine not exceeding fifty dollars, which shall be imposed by the court.(Code 1849, c. 162, §6; 1852-3, c. 27, §18; Code 1860, c. 162, §16; Code 1868, c. 116, §15; 1872-3, c. 47, §20; 1882, c. 83, §15; 1891, c. 42, §15; Code 1923, c. 116, §15.)

§17. Discharge of Jurors; Excuse From Attendance.—Any court, when not incompatible with the proper dispatch of its business, shall have power to discharge persons summoned as jurors therein, or dispense with their attendance on any day of its sitting.(1852-3, c. 27, §20; Code 1860, c. 162, §18; Code 1868, c. 116, §16; 1872-3, c. 47, §22; 1882, c. 83, §16; 1891, c. 42, §16; Code 1923, c. 116, §16.)

§18. Competency of Jurors When Municipality, County or District a Party or Interested.—In any suit or proceeding in which a county, district, school district, or municipal corporation, is interested, or is a party, no person shall be incompetent as a juror because he is an inhabitant or taxpayer of such county, district, school district or municipal corporation: Provided, however, That in any case where a municipal corporation is interested, or is a party, the court, upon motion of either party to the suit, made either on the first day of the term of the court, or at any other time not less than five days before the day set for the trial, may order jurors to be drawn in the manner hereinbefore provided, and summoned, none of whom are citizens or taxpayers of such municipal corporations; and if it be under circumstances requiring the issuing of a venire facias, the jury commissioners charged with the duty of drawing the names from the box shall draw the number required, exclusive of those who are known to be citizens or taxpayers of such municipal corporation. But this provision shall not apply in any case between a municipal corporation and any citizen or taxpayer in such corporation. But in such case, the list prepared by the jury commissioners under section four of this article shall be exhausted before another list is made. The jurors so summoned shall be required to attend on such days as the court may direct.(1882, c. 83, §17; 1890, c. 11, §17; 1891, c. 42, §17; Code 1923, c. 116, §17.)

§19. Penalty for Failure to Draw or Summon Jurors.—When, by neglect of any of the duties required in this article to be performed by any of the officers or persons herein mentioned, the jurors to be returned shall not be duly drawn and summoned to attend the court, any person guilty of such neglect shall pay a fine not exceeding twenty dollars, to be imposed by the court.(Code 1849, c. 162, §6; 1852-3, c. 27, §26; Code 1860, c. 162, §24; Code 1868, c. 116, §20; 1872-3, c. 47, §§5, 26; 1882, c. 83, §20; 1891, c. 42, §20; Code 1923, c. 116, §20.)

§20. When and How Jurors to be Summoned From Other County.—In any criminal case in any court, if in the opinion of the court, or the judge thereof in vacation, qualified jurors, not exempt from serving, cannot be conveniently found in the county in which the trial is to be, the court, or the judge thereof in vacation, shall enter an order of record to such effect, and may cause so many of such jurors as may be necessary to be summoned from any other county. In such order the court, or the judge thereof in vacation, shall fix a day on which such jurors shall be required to attend, and in such order shall be indicated the county from which such jurors shall be drawn, and the number of such jurors to be drawn. An attested copy of such order shall be certified to the circuit court of the county designated, or the judge thereof in vacation, and thereupon such circuit court, or the judge thereof in vacation, shall, by order, direct that a jury be drawn, in the manner provided by law for the drawing of petit jurors in his county, and proceedings respecting the drawing of such jurors, including the names of the jurors so drawn, shall be certified by the clerk of the circuit court of the county designated to the clerk of the court wherein the trial is to be. Thereupon, a writ of venire facias shall be issued by the clerk of the court wherein the trial is to be, directed to the sheriff of the county wherein such jurors have been drawn, commanding him to summon the jurors so drawn to attend for jury service in the county wherein the trial is to be upon the day named in the writ. Such jurors shall attend for the purpose of the trial, and the jury shall be selected in the manner provided by law. For their service, the jurors so drawn shall be paid the per diem and mileage out of the same funds that the jurors of the county wherein the trial is to be are paid.(1921, c. 69, §21; Code 1923, c. 116, §21.)

§21. Compensation of Jurors ; Taxation of Jury Fees as Costs; Disposition Thereof.—Any person summoned as aforesaid, by virtue of a venire facias or otherwise, to serve as a petit juror, and actually attending upon the court, or attending at the courthouse, at the time summoned, whether he be called to serve on a jury or not, shall, for each day he so attends, be entitled to receive not less than two dollars and not more than three dollars and fifty cents, to be fixed by the court, and the same mileage allowed to witnesses, to be paid out of the county treasury. The judge of the court shall fix the compensation for petit jurors, as provided for above, by an, order entered of record in court: Provided, That for any day that any person shall be sworn to serve as a juror on a case of felony he shall, for that day, and any other days he may so serve on such case, be paid three dollars and fifty cents out of the state treasury; that for each day he shall not actually attend at the courthouse he shall receive nothing; and that he shall be allowed mileage but once during the term: Provided further, That when a jury on a case of felony shall be placed in the custody of the sheriff, he shall provide for and furnish such jury with regular meals at a reasonable cost not to exceed two dollars a day, while they are in his custody, and such meals shall be paid for out of the state treasury as provided for above for jury service in felony cases. There shall be taxed in the costs against any person against whom a judgment or the verdict of a jury may be rendered in a case of misdemeanor, and against any person against whom judgment on the verdict of a jury may be rendered in a civil action, and against any person on whose motion the verdict of a jury is set aside and a new trial granted, eight dollars for jury costs, which, when collected from the party, shall be paid into the county treasury. All money so received by the clerk shall be forthwith paid by him to the sheriff, and the clerk and his surety shall be liable therefor on his official bond, as for other money coming into his hands by virtue of his office. The clerk of the circuit court of each county in this State shall annually certify to the county court a list of all money so paid to him, and by him paid to the sheriff, and, in addition there to, a correct list of all the cases in which jury fees have been taxed, and are, at the time, properly due and payable in the county treasury, and the sheriff of the county shall be held to account in his annual settlement for all such moneys collected by him.(1852-3, c. 27, §§30, 31, 33; Code 1860, c. 162, §§28, 29, 31; 1863, c. 93, §§28, 29; Code 1868, c. 116, §23; 1870, c. 20, 623; 1872-3, c. 47, §29; 1882, c. 83, §23; 1909, c. 37, §23; 1921, c. 67, §23; Code 1923, c. 116, §23; 1929, c. 31.)

§22. When Juror Not Entitled to Compensation.—No juror who shall depart without leave of the court, or who, being summoned as a witness for the State, shall charge for his attendance as such, shall be entitled to receive any compensation for his services as a juror.(1852-3, c. 27, §32; Code 1860, c. 162. §30; 1863, c. 93, §30; Code 1868, c. 116, §24; 1872-3, c. 47, §30; 1882, c. 83, §24; Code 1923, c. 116, §24.)

§23. Record of Allowance to Jurors; Certification to Auditor; Failure of Clerk to Comply With Provisions.—The clerk of any court upon which juries are in attendance shall, before the final adjournment of each term, and under the direction of the court, make an entry upon its minutes, stating separately the amount which each juror is entitled to receive out of the state treasury, or out of the county treasury, for his services or attendance during the term. It shall be the duty of such clerk, as soon as practicable after adjournment of the court, to transmit to the auditor certified copies of all orders under this section making allowances payable out of the state treasury. Any such clerk who shall fail to pay over, as required by law, any moneys so received by him, or otherwise to comply with the provisions of this article, shall be guilty of a misdemeanor and fined not less than fifty dollars.(1852-3, c. 27, §34; Code 1860, c. 162, §32; 1863, c. 93, §32; Code 1868, c. 116, §25; 1872-3, c. 47, §31; 1882, c. 83, §25; Code 1923, c. 116, §25.)

§24. Payment of Compensation.—It shall be the duty of such clerk, as soon as practicable after the adjournment of the court, to deliver to each juror a certified copy of any order under the preceding section making an allowance to him, payable out of the state treasury or out of the county treasury; and the sheriff of such county shall, upon demand, pay to such juror the amount allowed him, which shall be repaid to the sheriff out of the state treasury or out of the county treasury, upon the production of satisfactory proof that the same has actually been paid by him. If any sheriff fail to pay any such allowance as required by law, he may be proceeded against as for a contempt of court.(1852-3, c. 27, §35; Code 1860, c. 162, §33; 1863, c. 93, §33; Code 1868, c. 116, §26; 1872-3, c. 47, §32; 1882, c. 83, §26; Code 1923, c. 116, §26.)

§25. Fraud in Selection of Jurors.—If any person shall be guilty of any fraud, by tampering with the jury box prior to drawing jurors, or in drawing a juror, or in returning into the jury box the name of any person which has lawfully been drawn out, and drawing and substituting another instead, or in failing to place such name in the box for the ballots marked “drawn,” or in any other way in the drawing of jurors, he shall, on conviction thereof, be punished by a fine not exceeding five thousand dollars.(1852-3, c. 27, §36; Code 1860, c. 162, §34; Code 1868, c. 116, §27; 1872-3, c. 47, §33; 1882, c. 83, §27; Code 1923, c. 116, §27.)

§1. At What Terms Grand Jury Shall Attend; When Court or Judge May Dispense With it.—There shall be a grand jury at each term of a circuit court, except that the circuit court of any county by an order entered of record, or the judge thereof in vacation by written order to the clerk at least twenty days before the term, may dispense with the grand jury for one or two of the terms required by law to be held in such county annually, and the circuit court of any county in which there may be a criminal court whose jurisdiction includes the trial of felony cases, by an order entered of record, may dispense with the grand jury for all the terms of such circuit court required by law to be held in such county annually; and in such case no grand jury shall be drawn by the court or by the judge in vacation. Any circuit court may, at a special, regular or adjourned term thereof, whenever it shall be proper to do so, order a grand jury to be drawn and to attend such term. A grand jury summoned to attend a special, regular or adjourned term may consider any offense against the laws, whether the same shall have been committed before the next preceding term of the court or not, and whether the accused shall have been held for trial or not prior to the next preceding regular term.(Code 1849, c. 206, §2; 1852-3, c. 27, §2; 1855-6, c. 215, §4; 1859-60, c. 38, §2; Code 1860, c. 206, §1; Code 1868, c. 157, §1; 1872-3, c. 49, §1; c. 203, §1; 1882, c. 138, §1; 1899, c. 19, §1; 1905, c. 86, §1; Code 1923, c. 157, §1.)

§2. Preparation of Jury List; Qualifications of Jurors; Ballots; Custody of List and Ballots.—The jury commissioners appointed under the provisions of section three of article one of this chapter shall select and draw persons for grand juries. Such commissioners shall, at the levy term of the county court each year, and at any other time when required by the court which appointed them, or the judge thereof in vacation, prepare a list of not less than one hundred nor more than two hundred qualified persons of their county, for grand jury service, chosen from the respective magisterial districts thereof, as nearly as may be in proportion to the population of the districts. The lists so prepared shall be submitted to the clerk of the court authorized to impanel a grand jury, or the judge thereof when required, and the name of any person who is not qualified shall be stricken from the list by the clerk or judge. The persons so listed shall be men of good moral character, who have never been convicted of a felony or of any scandalous offense; and shall have been bona fide citizens of the State and county for at least one year immediately preceding the preparation of the list, and shall not be office holders under the laws of the United States or of this State. At the time such jury list is made up, the jury commissioners shall cause all the names thereon to be written, each on a separate ballot, and shall fold, roll or prepare the same so as to resemble each other as nearly as may be, and so that the name written thereon shall not be visible on the outside, and shall inclose the ballots for each magisterial district in a separate envelope indorsed with the name of the magisterial district and the number of ballots inclosed, and shall deposit all the ballots, with the list, in a secure box to be prepared for the purpose, which shall be delivered to and safely kept by the clerk of the circuit court, and shall be known as the “grand jury box” and shall be opened only by the jury commissioners or by order of the judge of the court having control thereof.(Code 1849, c. 206, §4: Code 1860, c. 206, §3; Code 1868, c. 157, 53; 1883, c. 138, §2; 1919, c. 22, §2; Code 1923, c. 157, §2.)

§3. Summoning Jury Commissioners; Selection and Summoning of Jurors.—The clerk of any court requiring a grand jury shall, at least thirty days before the term of court, summon the jury commissioners to attend at his office at a day specified, which shall not be less than twenty days before such term, and select men for the grand jury, but the court, or judge thereof, may require such jury commissioners to appear forthwith, or at any specified time, and select grand jurors for either a regular, special or adjourned term of court. On the day appointed, the jury commissioners shall appear and draw the names of sixteen persons from the grand jury box, and the persons so drawn shall constitute the grand jury. If when drawing the ballots it shall appear to the commissioners that any person so drawn is dead, or for any reason disqualified or unable to serve, they shall destroy the ballot and cancel the name on the list and draw another in his stead. They shall enter the names of all persons so drawn in a book kept for that purpose and deliver a list thereof to the clerk, who shall issue a summons for the persons drawn, directed to the sheriff of the county requiring him to summon them to appear on the day required and serve as grand jurors. The provisions of article one of this chapter relating to the drawing and summoning of petit jurors and drawing ballots and cancellation and marking thereof, so far as applicable and not inconsistent with the provisions of this article, shall be observed and govern the selection of a grand jury, except that the ballots shall be drawn from the several envelopes in proportion as near as may be to the numbers indorsed thereon, but so that at least one ballot shall be drawn from each envelope.(Code 1849, c. 206, 653, 4; 1852-3, c. 27, §5; Code 1860, c. 206, §§2, 3; Code 1868, c. 157, §§2, 3; 1882, c. 138, §3; 1919, c. 22, §3; Code 1923, c. 157, §3.)

§4. Quorum; Additional Jurors.—Any fifteen or more of the grand jurors attending shall be a competent grand jury. If a sufficient number of qualified jurors do not attend, the court shall appoint two bona fide citizens of the county, of opposite politics, having all of the qualifications of jury commissioners, who, after taking the oath required of jury commissioners, shall select the number of qualified persons necessary to complete the grand jury, for which services the person so appointed shall be allowed the sum of two dollars each, to be certified by the court to the county court for payment.(Code 1849, c. 206, §5; Code 1860, c. 206, §4; Code 1868, c. 157, §4; 1882, c. 138, §4; 1919, c. 22, §4; Code 1923, c. 157, §4.)

§5. Oath.—From among the persons so summoned, who attend, the court shall select a fore man, who shall be sworn as follows: “You shall diligently inquire and true presentment make of all such matters as may be given you in charge or come to your knowledge touching the present service. You shall present no person through malice, hatred or ill will, nor leave any unpresented through fear, favor, partiality or affection, but in all your presentments you shall present the truth, the whole truth and nothing but the truth. So help you God.” The other grand jurors shall afterwards be sworn as follows: “The same oath that your foreman has taken on his part, you and each of you shall observe and keep on your part. So help you God.”(Code 1849, c. 206, §6; Code 1860, c. 206, §5; Code 1868, c. 157, §5; 1882, c. 138, §5; Code 1923, c. 157, §5.)

§6. Charge.—The grand jurors, after being sworn, shall be charged by the judge, and shall then be sent to their room.(Code 1849, c. 206, §7; Code 1860, c. 206, §6; Code 1868, c. 157. §6; 1872-3, c. 49, §2: 1882, c. 138, §6; Code 1923, c. 157, §6.)

§7. Duties; Preservation of Evidence.—The grand jury shall inquire of and present all felonies, misdemeanors and violations of penal laws, committed in the jurisdiction of the court wherein they are sworn, except that no presentment shall be made of a matter for which there is no imprisonment, but only a fine, where the fine is limited to an amount not exceeding ten dollars and the offense is cognizable by a justice of the peace. They shall appoint one of their number as clerk, who shall write down the name of each witness examined by them, and the substance of the evidence given by him, and furnish the same to the prosecuting attorney.(Code 1849, c. 206, §8; Code 1860, c. 206. §7; Code 1868, c. 157, §7; 1882, c. 138, §7; Code 1923, c. 157, §7.)

§8. Finding.—At least twelve of the grand jurors must concur in finding or making an indictment or presentment. They may make a presentment or find an indictment upon the information of two or more of their own body, and when a presentment or indictment is so made, or on the testimony of witnesses called on by the grand jury, or sent to it by the court, the names of the grand jurors giving the information, or of the witnesses, shall be written at the foot of the presentment or indictment.(Code 1849, c. 206, §9; Code 1860, c. 206, §8; Code 1868, c. 157, §8; 1882, c. 138, §8; Code 1923, c. 157, §8.)

§9. Second Hearing.—Although a bill of indictment be returned not a true bill, another bill of indictment against the same person for the same offense may be sent to and acted on by the same or another grand jury.(Code 1849, c. 206, §10; Code 1860, c. 206, §9; Code 1868, c. 157, §9; 1882, c. 138, §9; Code 1923, c. 157, §9.)

§10. Substituting New Juror to Fill Vacancy; Summoning Additional Juror.—If the foreman or any grand juror be unable or fail to attend after being sworn, another may be sworn in his stead. And when one grand juror has been discharged, another may, by order of the court, be summoned to attend at the same term.(Code 1849, c. 206, §11; Code 1860, c. 206, §10; Code 1868, c. 157, §10; 1882, c. 138, §10; Code 1923, c. 157, §10.)

§11. Penalty for Failure to Summon Juror and for Failure of Juror to Attend.—A court whose officer shall fail, when it is his duty, to summon a grand jury and return a list of their names, shall fine him twenty dollars. A person summoned, and failing to attend court as a grand juror, shall be fined by such court ten dollars, unless, after being summoned to show cause against the fine, he give a reasonable excuse for his failure.(Code 1849, c. 206, §12; Code 1860, c. 206, §11; Code 1868, c. 157. §11; 1882, c. 138, §11; Code 1923, c. 157, §11.)

§12. Incompetency or Disqualification of Juror Not to Affect Validity of Finding.—No presentment or indictment shall be quashed or abated on account of the incompetency or disqualification of any one or more of the grand jurors who found the same.(Code 1868, c. 157, §12; 1882, c. 138, §12; Code 1923, c. 157, §12.)

§13. Compensation and Mileage of Grand Jurors.—Every person who shall serve upon a grand jury shall be entitled to receive for such services not less than two dollars nor more than three dollars and fifty cents, to be fixed by the court, for each day he may so serve, and in addition thereto the same mileage as allowed to witnesses, to be paid out of the county treasury. But he shall not be paid for more than four days’ services at any one term of the court, except in the counties of Harrison, Kanawha, McDowell, Fayette, Cabell, Marshall, Marion, Mercer, Wood, Ohio, Mingo, Monongalia, Preston and Summers, where such grand jurors shall not be paid for more than ten days’ services for any one term of court. The judge of the court shall fix the compensation for grand jurors, as provided above, by an order entered of record in such court. The provisions of sections twenty-three and twenty-four of article one of this chapter, relating to allowance and payment of compensation and mileage to petit jurors, where applicable, shall apply in like respect to grand jurors.(1852-3, c. 27, §29; Code 1860, c. 162, §27; 1863, c. 93, §27; Code 1868, c. 116, §22; 1872-3, c. 47, §28; 1882, c. 83, §22; 1909, c. 37, §22; 1921, c. 67, §22; Code 1923, c. 116, §22.)