Chapter 62. CRIMINAL PROCEDURE.

§1. Apprehension of Persons Charged With Offenses; Judges May Issue Process.—A judge of a circuit, intermediate, criminal or other court having jurisdiction to try criminal offenses, in vacation as well as in term time, or a justice of the peace, may issue process for the apprehension of a person charged with an offense.(Code 1849, c. 204, §1; Code 1860, c. 204, §1; Code 1868, c. 156, §1; 1882, c. 79, §1; Code 1923, c. 156, §1.)

§2. Complaint and Warrant; Witnesses; Number Limited.—On complaint to any judge or justice mentioned in the preceding section that a criminal offense has been committed, he shall examine, on oath, the complainant and any other witnesses, and, if he see good reason to believe that an offense has been committed, shall issue his warrant reciting the accusation, and requiring the person accused to be arrested and brought before a justice of the county; and in the same warrant may require the officer to whom it is directed to summon such witnesses, as shall therein be named, to appear and give evidence on the examination. But compensation shall in no case be allowed to more than five witnesses on behalf of the State, upon examinations before justices of persons charged with felony: Provided, That compensation to a greater number, not exceeding ten in all, may be allowed upon certificate of the prosecuting attorney that he has inquired into the case and finds such greater number necessary.(Code 1849, c. 204, §2; Code 1860, c. 204, §2; Code 1868, c. 156, §2; 1882, c. 79, §2; 1887, Ex. Sess., c. 4; Code 1923, c. 156, §2.)

§3. Where Warrant May Be Executed; Indorsement by Foreign Justice Thereon.—If a person charged with an offense shall, after or at the time the warrant is issued for his apprehension, escape from or be out of the county in which the offense is alleged to have been committed, the officer to whom the warrant is directed may pursue and apprehend him anywhere in the State; or a justice of a county other than that in which it was issued, on being satisfied of the genuineness thereof, shall indorse thereon his name and official character, and such indorsement shall operate as a direction of the warrant to an officer of such justice’s county.(Code 1849, c. 204, §3; Code 1860, c. 204, §3; Code 1868, c. 156, §3; 1882, c. 79, §3; Code, 1923, c. 156, §3.)

§4. Delivery of Prisoner and Return of Warrant.—An officer arresting a person under a warrant for an offense shall bring such person before, and return such warrant to, a justice of the county in which the warrant issued, unless such person be let to bail as provided in section six of this article, or it be otherwise provided.(Code 1849, c. 204, §4; Code 1860, c. 204, §4; Code 1868, c. 156, §4; 1882, c. 79, §4; 79, §3; Code 1923, c. 156, §3.)

§5. Transfer of Prisoner to County of Offense.—Where the warrant is issued in a county other than that in which the charge ought to be tried, the justice before whom the accused is brought shall, by warrant, commit him to an officer that he may, and such officer shall, carry him to the county in which the trial should be, and shall there take him before, and return such warrant to, a justice thereof.(Code 1849, c. 204, §5; Code 1860, c. 204, §5; Code 1868, c. 156, §5; 1882, c. 79, §5; Code 1923, c. 156, §5.)

§6. Admission to Bail; Procedure; Exceptions.—A justice may admit to bail a person who is charged with, but not convicted of, an offense not punishable with death. If the offense be punished by confinement in the penitentiary, he shall not admit such person to bail in a sum less than five hundred dollars. But a justice shall not admit any person to bail if bail has been previously refused to such person by any court or judge; nor shall any person confined in jail by an order of commitment in which the amount of bail he is to give is specified, or where an order has been made by a court or judge fixing the bail such person is to give, be admitted to bail by a justice in a sum less than is specified in the order. But a circuit, intermediate or criminal court, or the supreme court of appeals, or a judge of either of said courts in vacation, may, for good cause shown, admit any person to bail before conviction, or after conviction, except a conviction for offenses where the penalty is confinement in the penitentiary for life or death, and during the suspension of the execution of the judgment of conviction or pending an appeal or writ of error, and may, by order, direct the clerk of the circuit, intermediate or criminal court of the county in which the offense is charged to have been committed to take the bond with good security in such a sum as the court or judge may fix in such order: Provided, That in cases where bail has been allowed, after conviction as aforesaid, the condition of the recognizance, or bond, shall be, that the accused shall appear before the said circuit, intermediate or criminal court at its first regular term after the appellate court shall have rendered its final order or judgment, upon such writ of error, appeal or supersedeas, and submit himself to such order or judgment, and to be further dealt with according to law.(Code 1849, c. 204, §6; Code 1860, c. 204, §6; Code 1868, c. 156, §6; 1872, cc. 89, 230; 1882, c. 79, §6; 1915, c. 81 ; Code 1923, c. 156, §6.)

§7. Bail in County of Arrest.—A person charged with an offense not punishable with death or confinement in the penitentiary, and who is to be taken to another county for examination or trial, shall, if he request it in the county wherein he is arrested, be brought before a justice thereof. In such case, or in any case of a person charged with an offense not so punishable, if he desire it, a court, judge, or justice, before whom he is brought, may, without trial or examination, let him to bail upon taking a recognizance for his appearance before the court having cognizance of the case. The fact of taking such recognizance shall be certified by the court or officer taking it, upon the warrant under which such person was arrested; and the warrant or recognizance shall be returned forthwith to the clerk of the court before which the accused is to appear; to which court the judge or justice who issued such warrant shall recognize, or cause to be summoned, such witnesses as he thinks proper.(Code 1849, c. 204, §7; Code 1860, c. 204, §7; Code 1868, c. 156, §7; 1882, c. 79, §7; Code 1923, c. 156, §7.)

§8. Bail Piece; Surrender of Accused by Surety.—In all cases in which a recognizance, at the suit of this State, heretofore has been or shall be entered into, it shall be the duty of the clerk of the court in which, or in the clerk’s office of which, any recognizance may be filed, to deliver to the bail, on his applying therefor, a bail piece in substance as follows, viz:

A.................., B......................., of the county of ..................................., is delivered to bail unto C ....................... D ....................., of the county of...................................., at the suit of the State of West Virginia. Given under my hand this ............... day of .................., in the year........... ...........................Clerk. And the person to whom such bail piece is so delivered, or his agent, may, at any time while his liability as bail continues, arrest the person so delivered to bail, and commit him to the jail of the county in which such recognizance is filed as aforesaid.(1852, c. 93; Code 1860, c. 204, §8; Code 1868, c. 156, §8; 1882, c. 79, §8; Code 1923, c. 156, §8.)

§9. Adjournment of Hearing by Justice; Recognizance; Commitment.—A justice may adjourn an examination pending before him, not exceeding ten days at one time, without the consent of the accused, and to any place in the county. In such case, if the accused be charged with an offense punishable with death, he shall be committed to jail; otherwise, he may be recognized for his appearance at the time appointed for such further examination, or, for want of bail, be committed to jail.(Code 1849, c. 204, §8; Code 1860, c. 204, §9; Code 1868, c. 156, §9; 1882, c. 79, §9; Code 1923, c. 156, §9.)

§10. Forfeiture of Recognizance; Proceedings Thereon.—If the person so recognized do not appear at the time so appointed, the justice shall certify the recognizance and the fact of such default to the circuit, intermediate or criminal court, at its next term, and like proceedings shall be had thereon as on the breach of a recognizance for appearance before such court.(Code 1849, c. 204, §9; Code 1860, c. 204, §10; Code 1868, c. 156, §10; 1872-3, c. 91; 1875, c. 86; 1882, c. 79, §10; Code 1923, c. 156, §10.)

§11. Commitment for Further Examination.—If the accused is committed, it shall be by an order of the justice, stating that he is committed for further examination on a day specified in the order; and on that day he may be brought before the justice by his verbal order to the officer by whom he was committed, or by a written order to a different person.(Code 1849, c. 204, §10; Code 1860, c. 204, §11; Code 1868, c. 156, §11; 1872-3, c. 91; 1875, c. 86; 1882, c. 79, §11; Code 1923, c. 156, §11.)

§12. Conduct of Examination; Separation of Witnesses; Reduction of Testimony to Writing.—The justice before whom any person is brought for an offense, if demanded by such person, shall, as soon as may be, in the presence of such person, examine, on oath, the witnesses for and against him, and he may be assisted by counsel. While a witness is under an examination all other witnesses may, by order of the justice, be excluded from the place of examination and kept separate from each other. When the justice deems it proper, or the accused shall desire it, the testimony of the witnesses shall be reduced to writing and signed by them respectively.(Code 149, c. 204, §§11, 12, 13; Code 1860, c. 204, §§12, 13, 14; Code 1868, c. 156, §§12, 13, 14; 1872-3, c. 91; 1875, c. 86; 1882, c. 79, §§12, 13, 14; 1887, Ex. Sess., c. 4; Code 1923, c. 156, §§12, 13, 14.)

§13. Discharge or Commitment on Examination; Recognizance of Witnesses.—The justice shall discharge the accused if he consider that there is not sufficient cause for charging him with the offense; and he shall commit him to jail if he consider that there is such cause, or let him to bail under the sixth section of this article. He shall require recognizance, with or without sureties, as he deems proper, from all material witnesses against the accused, and also for the accused, if the latter desire it.(Code 1849, c. 204, §14; Code 1860, c. 204, §15; Code 1868, c. 156, §15; 1882, c. 79, §15; Code 1923, c. 156, §15.)

§14. Form of Commitment and Recognizance; Return by Justice to Court.—When a justice so considers that there is sufficient cause for charging the accused with the offense, unless it be a case wherein it is otherwise specially provided, the commitment shall be for trial, and the recognizance shall be for the appearance of the accused in the circuit, intermediate or criminal court on some day of the term then being held, or on the first day of the next term thereof. The justice shall return to the clerk of such court, as soon as may be, a certificate of the nature of the offense, showing whether the accused was committed or bailed therefor; and the clerk, as soon as may be, shall inform the prosecuting attorney in said court of such certificate.(Code 1849, c. 204, §15; Code 1860, c. 204, §15; Code 1868, c. 156, §16; 1872-3, c. 91; 1875, c. 86; 1882, c. 79, §16; Code 1923, c. 156, §16.)

§15. Certification of Examination and Recognizance to Clerk of Court.—Every examination and recognizance taken under the provisions of this article shall, by the judge or justice taking it, be certified to the clerk of the circuit, intermediate or criminal court, on or before the day on which the party charged is to appear in such court. If he fail, he may be compelled to do so by attachment as for contempt.(Code 1849, c. 204, §16; Code 1860, c. 204, §17; Code 1868, c. 156, §17; 1882, c. 79 §17; Code 1923, c. 156, §17.)

§16. Hearing by Several Justices.—A justice to whom complaint is made, or before whom a prisoner is brought, may associate with himself one or more justices of the county, and they may together execute the powers and duties before mentioned.(Code 1849, c. 204, §17; Code 1860, c. 204, §18; Code 1868, c. 156, §18; 1882, c. 79, §18; Code 1923, c. 156, §18.)

§17. Order Discharging Recognizance or Superseding Commitment; Recognizance Not to be Quashed for Informality.—Every order discharging a recognizance shall be filed with the clerk of the proper court before the day of the court on which the party was to appear, and an order superseding a commitment shall be delivered to the jailer, who shall forthwith discharge the witnesses (if any) and the accused; and judgment shall be entered in said court either against the accused, or otherwise, for the costs of the prosecution not already paid, as to the court may be deemed right and proper.

No recognizance shall be quashed, or in any manner affected or impaired, by reason of any informality therein, if it sufficiently appear therefrom what was intended thereby.(Code 1849, c. 204, §19; Code 1860, c. 204, §20; Code 1868, c. 156, §§20, 21; 1882, c. 79, §§19, 20; Code 1923, c. 156, §§19, 20.)

§18. Search Warrants; For What Property Issued; Direction and Execution; Disposition of Property.—If there be complaint, on oath, that personal property has been stolen, embezzled, or obtained by false pretenses, and that it is believed to be concealed in a particular house or other place, the justice to whom complaint is made, if satisfied that there is reasonable cause for such belief, shall issue a warrant to search such place for the property. On like complaint on oath, according to the nature of the case, the justice to whom it is made, if satisfied that there is reasonable cause therefor, shall issue a warrant to search specified places for the following things: (a) Counterfeit or spurious coin, forged bank notes and other instruments or writings, or any tools, machines or materials for making them; (b) any book or other thing containing obscene language, or any print, picture, figure or description, manifestly tending to corrupt the morals of youth, intended to be sold, loaned, circulated, or distributed, or to be introduced into a family, school, or place of education; (c) lottery tickets, or materials unlawfully made, provided, or procured for drawing a lottery; (d) any gaming apparatus or implements used, or kept and provided to be used, in unlawful gaming, or any place resorted to for unlawful gaming.

Every search warrant shall be directed to the sheriff or any constable of the county in which the place to be searched may be, and shall command him to search the place designated, and seize such stolen property or other things, if found, and bring the same, and the person in whose possession they are, before a justice or court having cognizance of the case. Such warrant may be executed either in the day or night.

If such warrant be executed by the seizure of such property, or any other of the things aforesaid, the same shall be safely kept, by the direction of such justice or court, to be used as evidence; and as soon as may be afterwards, such stolen or embezzled property shall be restored to its owner, and the other things specified aforesaid burnt or otherwise destroyed under such direction.(Code 1849, c. 203, §§1, 2, 3, 4; Code 1860, c. 203, §§1, 2, 3, 4; Code 1868, c. 155, §§1, 2, 3, 4; 1872-3, c. 179; Code 1923, c. 155, §§1, 2, 3, 4.)

§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 the indictment may be found in the first instance, whether the accused has been examined or committed by a justice or not.(Code 1849, c. 206, §1; Code 1860, c. 207, §1; Code 1868, c. 158, §1; Const. 1863, art. 2, §1; Const. 1873, art. 3, §4; Code 1923, c. 158, §1.)

§2. Name of Prosecutor and County of Residence on Indictment; Security for Costs.—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.(Code 1849, c. 207, §3; Code 1860, c. 207, §3; Code 1868, c. 158, §2; Code 1923, c. 158, §2.)

§3. Costs 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 his costs.(Code 1849, c. 207, §4; Code 1860, c. 207, §4; Code 1868, c. 158, §3; Code 1923, c. 158, §3.)

§4. Indictment for Perjury; Allegations.—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.(Code 1849, c. 207, §5; Code 1860, c. 207, §5; Code 1868, c. 158, §4; Code 1923, c. 158, §4.)

§5. Indictment for Embezzlement; Allegations; Proof.—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 to the last of such acts; and it shall be sufficient to allege the embezzlement or fraudulent conversation 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 note, or security for money, (although the particular item or thing embezzled or converted be neither alleged nor proved).(Code 1849, c. 207, §6; Code 1860, c. 207, §6; Code 1868, c. 158, §5; Code 1923, c. 158, §5.)

§6. Indictment for Forgery; Allegations; Copy of Forged Instrument Not Necessary.—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.(Code 1849, c. 207, §7; Code 1860, c. 207, §7; Code 1868, c. 158, §6; Code 1923, c. 158, §6.)

§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.(Code 1849, c. 207, §8; Code 1860, c. 207, §8; Code 1868, c. 158, §7; Code 1923, c. 158, §7.)

§8. Allegations of Intent to Injure, Cheat or Defraud; Variance.—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.(Code 1849, c. 207, §9; Code 1860, c. 207, §9; Code 1868, c. 158, §8; Code 1923, c. 158, §8.)

§9. Unnecessary Allegations May be Omitted.—All allegations, unnecessary to be proved, may be omitted in any indictment or other accusation.(Code 1849, c. 207, §10; Code 1860, c. 207, §10; Code 1868, c. 158, §9; Code 1923, c. 158, §9.)

§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 jurdisdiction; 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.(Code 1849, c. 207, §11; Code 1860, c. 207, §11; Code 1868, c. 158, §10; Code 1923, c. 158, §10.)

§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.(Code 1849, c. 207, §12; Code 1860, c. 207, §12; Code 1868, c. 158, §11; Code 1923, c. 158, §11.)

§12. When Imprisoned Person Must be Indicted; Limitation of Time.—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.(Code 1849, c. 207, §§13, 14; Code 1860, c. 207, §§13, 14; Code 1868, c. 158, §§12, 13; Code 1923, c. 158, §§12, 13.)

§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 the same, if he be not in custody. Such process, if the prosecution be for a felony, shall be a capias; if it be for a misdemeanor for which imprisonment may be imposed, it may be a capias or a summons, at the discretion of the court; in all other cases, it shall be, in the first instance, a summons, but if a summons be returned executed, or two be returned not found, and the defendant does not appear, the court may award a capias.(Code 1849, c. 207, §§15, 16; Code 1860, c. 207, §15; Code 1868, c. 158, §14; Code 1923, c. 158, §14.)

§14. Direction and Execution of Process; Several Writs; Certificate to Accused.—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. And 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. And 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. An officer having a capias under which the accused is let to bail shall give him a certificate of the fact, which shall protect him against any other capias which may have been issued for the same offense.(Code 1849, c. 207, §17; Code 1860. c. 207, §17; Code 1868, c. 158, §15; 1891, c. 120; Code 1923, c. 158, §15.)

§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.(Code 1849, c. 207, §18; Code 1860, c. 207, §18; Code 1868, c. 158, §16; Code 1923, c. 158, §16.)

§16. Where Process May be Executed.—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.(Code 1849, c. 207, §19; Code 1860, c. 207, §19; Code 1868, c. 158, §17; Code 1923, c. 158, §17.)

§17. Delivery of Prisoner to Court or Jailer.—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.(Code 1849, c. 207, §20; Code 1860, c. 207, §20; Code 1868, c. 158, §18; Code 1923, c. 158, §18.)

§18. Admission to Bail by Officer Making Arrest.—A person arrested on a capias, to answer or hear judgment on a presentment or indictment for a misdemeanor (other than is mentioned in the first section of article ten, chapter sixty-one of this Code), or on an attachment (other than an attachment to compel the performance of an order or decree in chancery), may be admitted to bail by the officer who arrests him; the said officer taking a recognizance in such sum, not being less than two hundred dollars, as he, regarding the case and the estate of the accused, may deem sufficient to secure his appearance before the court from which the process issued, at the time required thereby. The officer shall return the recognizance to such court on or before the return day of such process. If he fail to make such return, he shall forfeit twenty dollars; and if he take insufficient bail, he shall be guilty of a misdemeanor, and, upon conviction, shall be fined at the discretion of the court.(Code 1849, c. 207, §21; Code 1860, c. 207, §21; Code 1868, c. 158, §19; Code 1923, c. 158, §19.)

§19. Prosecutions Relating to License Taxes, Offenses Against Public Policy, and Where Punishment is Fine Only; Speedy Trial.—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.(Code 1849, c. 207, §23; Code 1860, c. 207, §23; Code 1868, c. 158, §20; Code 1923, c. 158, §20.)

§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.(Code 1849, c. 207, §24; Code 1860, c. 207, §24; Code 1868, c. 158, §21; Code 1923, c. 158, §21.)

§21. Second Capias or Trial After Summons in Misdemeanor Cases Not Covered in Section 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.(Code 1849, c. 207, §25; Code 1860, c. 207, §25; Code 1868, c. 158, §22; Code 1923, c. 158, §22.)

§22. No Discontinuance of Criminal Prosecution by 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.(Code 1849, c. 207, §26; Code 1860, c. 207, §26; Code 1868, c. 158, §23; Code 1923, c. 158, §23.)

§23. Prosecutions Against Corporations; Trial Without Appearance.—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.(Code 1860, c. 207, §29; Code 1868, c. 158, §26; Code 1923, c. 158, §26.)

§24. Joinder of 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 prejury, in the same indictment.(Code 1868, c. 158, §27; Code 1923, c. 158, §27.)

§25. Compromise or Suppression of Indictment or Presentment; Penalty.—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.(1882, c. 41, §17; Code 1923, c. 36, §17.)

§1. Time for Trial; Deposition of Witnesses for Accused; Counsel, Copy of Indictment, and List of Jurors for Accused.—When an indictment is found in a court having jurisdiction, in any county, against a person for a felony, 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 can not be had upon him in this State, or is aged or infirm so that he can not 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 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. The accused shall be allowed counsel if he desire it to assist him in his defense, and a copy of the indictment, and of the list of the jurors selected or summoned for his trial, as provided in the third section of this article, shall be furnished him, without fee, upon his request, at any time before the jury is impaneled.(Code 1849, c. 208, §2; Code 1860, c. 208, §2; Code 1868, c. 159, §1; 1882, c. 122; 1887, Ex. Sess., c. 6, §1; Code 1923, c. 159, §1.)

§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 with.(Code 1849, c. 208, §3; Code 1860, c. 208, §3; Code 1868, c. 159, §2; Code 1923, c. 159, §2.)

§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 can not 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 fail 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.(Code 1849, c. 208, §§4, 9; Code 1860, c. 208, §§4, 9; Code 1868, c. 159, §3; 1872-3, c. 229; 1887, Ex. Sess., c. 6, §3; Code 1923, c. 159, §3.)

§4. Challenges.—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.Code 1849, c. 208, §7; Code 1860, c. 208, §7; Code 1868, c. 159, §4; 1887, Ex. Sess., c. 6, §4; Code 1923, c. 159, §4.)

§5. Opposition of Juror to Capital Punishment.—A person whose opinions are such as to prevent him from convicting any one of an offense punishable with death, shall not be allowed to serve as a juror on a trial for such offense.(Code 1849, c. 208, §8; Code 1860, c. 208, §8; Code 1868, c. 159, §5; Code 1923, c. 159, §5.)

§6. Custody of Jury; Expenses; No Conversations With Jurors.—After a jury in a case of felony is impaneled and sworn, they shall be kept together and furnished with suitable board and lodging by the sheriff or other officer until they agree upon a verdict or are discharged by the court. The expenses thereof shall be paid by the sheriff and deducted from the per diem allowance of the jurors. After a jury has been impaneled, no sheriff or other officer shall converse with, or permit any one else to converse with a juror, unless by leave of the court.(Code 1849, c. 208, §11; Code 1860, c. 208, §11; Code 1868, c. 159, §6; 1872-3, c. 47, §38; 1882, c. 83, §32; Code 1923, c. 116, §32, c. 159, §6.)

§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 discharge.(Code 1849, c. 208, §12; Code 1860, c. 208, §12; Code 1868, c. 159, §7; Code 1923, c. 159, §7.)

§8. Jury Where Defendants Tried Jointly; Striking Jurors; Separate Trial.—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 can not 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.(Code 1849, c. 208, §§14, 15; Code 1860, c. 208, §§14, 15; Code 1868, c. 159, §8; 1882, c. 122; 1887, Ex. Sess., c. 6; Code 1923, c. 159, §8.)

§9. Trial of Insane Person; Finding as to Sanity; Procedure After Verdict of Sanity or Insanity.—No person shall, while he is insane, be tried for a criminal offense. If a court in which a person is indicted for a criminal offense see reasonable ground to doubt his sanity at the time at which but for such doubt he would be tried, it shall suspend the trial until a jury inquire into the fact of such sanity. Such jury shall be impaneled at its bar. If the jury find the accused to be sane at the time of their verdict, they shall make no further inquiry, and the trial in chief shall proceed. If they find that he is insane, they shall inquire whether he was so at the time of the alleged offense. If they find that he was so insane at that time, the court may dismiss the prosecution, and either discharge him, or, to prevent his doing mischief, remand him to jail, and order him to be removed thence to a state hospital for the insane. If they find he was not so insane at that time, the court shall commit him to jail, or order him to be confined in such hospital until he is so restored that he can be put upon his trial.(Code 1849, c. 208, §§16,17; Code 1860, c. 208, §§16, 17; Code 1868, c. 159, §§9, 10; 1872-3, c. 110; Code 1923, c. 159, §§9, 10.)

§10. Insanity After Conviction.—If, after conviction and before sentence of any person, the court see reasonable ground to doubt his sanity, it may impanel a jury to inquire into the fact as to his sanity, and sentence him, or commit him to jail or to a state hospital for the insane, according as the jury may find him to be sane or insane.(Code 1849, c. 208, §18; Code 1860, c. 208, §18; Code 1868, c. 159, §11; Code 1923, c. 159, §11.)

§11. Imprisonment of Offender Returned From Hospital for Insane; Procedure Thereafter.—When the superintendent of the state hospital for the insane shall give notice to the clerk of the court, in pursuance of section eight, article four, chapter twenty-seven of this Code, such clerk shall issue process to the officer of such court, requiring him to bring such prisoner from the hospital and commit him to jail. When a prisoner is so brought from the hospital and committed to jail, or when it is found by the verdict of another jury that a prisoner, whose trial or sentence was suspended by reason of his being found to be insane, has been restored, if convicted, he shall be sentenced, and if not, the court shall proceed to try him as if no delay had occurred on account of his insanity.(Code 1849, c. 208, §§19, 20; Code 1860, c. 208, §§19, 20; Code 1868, c. 159, §§12, 13; Code 1923, c. 159, §§12, 13.)

§12. Acquittal Because of Insanity; Commitment to Jail or Hospital.—When a prisoner tried for an offense is acquitted by the jury by reason of his being insane, the verdict shall state the fact; and thereupon the court may, if it deem him dangerous, order him to be committed to jail until he can be sent to a state hospital for the insane.(Code 1849, c. 208, §21; Code 1860, c. 208, §21; Code 1868, c. 159, §14; Code 1923, c. 159, §14.)

§13. Change of Venue; Recognizance or Commitment in Case of; Duties of Clerk.—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.(Code 1849, c. 208, §§22, 23, 24; Code 1860, c. 208, §§22, 23, 24; Code 1868, c. 159, §§15, 16, 17; 1872-3, c. 110; Code 1923, c. 159, §§15, 16, 17.)

§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.(Code 1849, c. 208, §28; Code 1860, c. 208, §27; Code 1868, c. 159, §18; Code 1923, c. 159, §18.)

§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 is guilty of murder of the first or second degree. If they find him guilty of murder of the first degree, they may, in their discretion, further find that he be punished by confinement in the penitentiary. If such further finding be not added to their verdict, the accused shall be punished with death, but, if added, he shall be punished by confinement in the penitentiary during his life. If the accused plead guilty of murder of the first degree, sentence of death or confinement in the penitentiary for life shall be pronounced upon him by the court, as may seem right, in the same manner and with like effect as if he had been found guilty by the verdict of a jury.(Code 1849, c. 208, §29; Code 1860, c. 208, §28; Code 1868, c. 159, §19; 1882, c. 113; Code 1923, c. 159, §19.)

§16. Verdicts Jury May Find on Indictments for Homicide or Assault.—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.(Code 1849, c. 208, §30; Code 1860, c. 208, §29; Code 1868, c. 159, §20; Code 1923, c. 159, §20.)

§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 twenty 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 twenty dollars or more, the jury may find the accused guilty; and in either case he shall be sentenced for petit larceny.(Code 1849, c. 208, §31; Code 1860, c. 208, §30; Code 1868, c. 159, §21; Code 1923, c. 159, §21.)

§18. Conviction of Attempt on Felony Charge; Verdict of Not Guilty a Bar.—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 such felony.(Code 1849, c. 208, §32; Code 1860, c. 208, §31; Code 1868, c. 159, §22; Code 1923, c. 159, §22.)

§19. Faulty Counts in Indictment; General Verdict.—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.(Code 1849, c. 208, §34; Code 1860, c. 208, §33; Code 1868, c. 159, §23; Code 1923, c. 159, §23.)

§20. Joint Trial; Verdict and Judgment.—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 jury.(Code 1849, c. 208, §35; Code 1860, c. 208, §34; Code 1868, c. 159, §24; Code 1923, c. 159, §24.)

§21. Discharge for Failure to Try; Exceptions.—Every person charged with felony, 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 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.(Code 1849, c. 208, §36; Code 1860, c. 208, §35; Code 1868, c. 159, §25; Code 1923, c. 159, §25.)

§1. Fines to Accrue to State for Support of Free Schools, Unless Otherwise Provided.—Unless otherwise expressly provided, or manifestly inconsistent with the intention of the legislature, every fine or forfeiture imposed by or under an act of the legislature shall be and accrue to the State for the support of the free schools, and shall be applied to such purpose pursuant to the fifth section of article twelve of the Constitution.(Code 1849, c. 43 §1; Code 1860, c. 43, §1; Const. 1863, art. 10, §2; Code 1868, c. 13, §17, c. 36, §1; Const. 1872, art. 12, §5; 1882, c. 41, §1, c. 143, §17; Code 1923, c. 13, §17, c. 36, §1.)

§2. Allowance to Informer or Person Prosecuting; Prerequisites.—Although a law may allow an informer or person prosecuting to have part of a fine, the whole thereof shall go to the State for the support of the free schools, unless the name of such informer or prosecutor be indorsed on or written at the foot of the presentment at the time it is made, or of the indictment before it is presented to the grand jury, or of the writ issued in the action, or the warrant, or the notice of the motion, before the service of such writ, warrant or notice.(Code 1849, c. 43, §4; Code 1860, c. 43, §4; Code 1868, c. 36, §2; 1882, c. 41, §2; Code 1923, c. 36, §2.)

§3. Fine and Imprisonment or Any Punishment Must be by Indictment or Presentment, Unless Otherwise Provided.—Where fine and imprisonment, or fine and any punishment is imposed by law, the proceeding shall be by indictment or presentment in the circuit court, or other court of record having jurisdiction in criminal cases, in the county wherein the offense was committed, unless otherwise specially provided.(Code 1849, c. 43, §§1, 2; Code 1860, c. 43, §§1, 2; Code 1868, c. 36, §3; 1872-3, c. 228, §3; 1882, c. 41, §3; Code 1923, c. 36, §3.)

§4. Recovery of Fines Before Justice or in Court.—Where a fine alone is imposed, if it be in a case mentioned in section one, article eighteen, chapter fifty of this Code, it may be recovered upon warrant of a justice having jurisdiction; and whether so mentioned or not, it may be recovered by presentment or indictment in the circuit court, or other court of record having jurisdiction in criminal cases, in the county wherein the offense was committed.(Code 1868, c. 36, §4; 1872-3, c. 228, §4; 1882, c. 41, §4; Code 1923, c. 36, §4.)

§5. Form of Proceedings.—The proceedings in all cases shall be in the name of the State, unless otherwise specially provided. If before a justice, the proceedings shall be according to article eighteen, chapter fifty of this Code.(Code 1868, c. 36, §5; 1872-3, c. 228, §5; 1882, c. 41, §5; Code 1923, c. 36, §5.)

§6. Remission of Fines by Governor.—Fines may be remitted by the governor, subject to the provisions of sections sixteen and seventeen, article one, chapter five of this Code.(Code 1868, c. 36, §7; Const. 1872, art. 7, §11; 1882, c. 41, §7; Code 1923, c. 36, §7.)

§7. No Remission of Fines by Courts, Save for Contempt.—No court shall remit any fine except for contempt, which the court during the same term may remit either wholly or in part. This section shall not impair the judicial power of the court to set aside a verdict or judgment, or to grant a new trial.(Code 1849, c. 43, §12; Code 1860, c. 43, §12; Code 1868, c. 36, §8; 1882, c. 41, §8; Code 1923, c. 36, §8.)

§8. Duties of Prosecuting Attorney in Relation to Fines.—It shall be the duty of the prosecuting attorney of every county to institute and prosecute in the circuit court, or other court having jurisdiction thereof, as the case may be, proper proceedings for the recovery of all fines imposed by law, where the cases are cognizable in such court. He shall superintend the issuing of executions on judgments for fines rendered by such courts, and cause all delinquencies in relation to the service or return of such executions to be duly prosecuted. If judgment be rendered by the circuit or other court for a fine, whether with or without imprisonment, a docket fee of ten dollars for the prosecuting attorney’s services, but payable into the county treasury, shall be taxed in the costs against the offender.(Code 1849, c. 43, §13; Code 1860, c. 43, §13; Code 1868, c. 36, §9; 1872-3, c. 228, §9; 1882, c. 41, §9; Code 1923, c. 36, §9.)

§9. Capias Profine; Release of Defendant on Bond; Default.—When a judgment for fine and costs is rendered by a circuit court, or other court of record having jurisdiction in criminal cases, the court may order a capias profine to be issued thereon at any time during the term at which the judgment is rendered, and if no such order be made, such capias shall be issued by the clerk of the court in vacation if he be ordered to do so by the prosecuting attorney. If the judgment of the court in such case be that the defendant be imprisoned and fined, or that he be fined and imprisoned until the fine and costs be paid, or if the defendant be imprisoned by virtue of such capias profine, in either event, the defendant may be released from such imprisonment, where he is detained for a failure to pay such fine and costs, only upon his giving bond with good security before the court, or before the clerk thereof in vacation, or before the sheriff of the county in which such judgment is rendered, payable to the State of West Virginia, for the payment of such fine and costs, at a time not exceeding twelve months after the date of such bond. If default be made in the payment of such bond, the same may be proceeded against to judgment and execution as if it were a forthcoming bond.(Code 1868, c. 36, §10; 1872-3, c. 228, §10; 1875, c. 12, §10; 1882, c. 41, §10; 1891, c. 81, §10; 1909, c. 33; Code 1923, c. 36, §10.)

§10. Discharge From Confinement; Allowances for Labor While so Confined.—Any person imprisoned for the purposes stated in the preceding section may be discharged from confinement at any time by the court wherein he was sentenced, and in no event shall his confinement, for failure to pay a fine and costs, exceed the term of six months. Any person confined in prison who is required to perform labor under the provisions of article fifteen, chapter seventeen of this Code, shall be allowed, as a credit upon the fine and costs for which he is liable, the sum of one dollar and fifty cents a day for each day he has so labored, and when the amount of such credits equals the amount of the fine and costs he shall be discharged from custody.

§11. Fieri Facias for Collection of Fines.—On every judgment for a fine rendered by a circuit court, or other court of record having jurisdiction in criminal cases, if no special order be made by the court or judge, the clerk of the court shall issue a writ of fieri facias immediately after the term at which such judgment was rendered. And unless paid in court, a payment to any person other than the officer who holds the execution shall not discharge the judgment.(Code 1849, c. 43, §14; Code 1860, c. 43, §14; Code 1868, c. 36, §12; 1872-3, c. 228, §12; 1882, c. 41, §12; Code 1923, c. 36, §12.)

§12. List of Fines for Auditor; Contents; Fees of Clerk.—The clerk of every circuit court, or other court of record having jurisdiction in criminal cases, shall, within thirty days succeeding the first day of July in every year, render under oath to the auditor a list of the fines imposed in his court during the year ending on the first day of July, excepting those cases in which, on the first day of July, executions had been issued and were not returnable before that day, and fines which do not go to the State either wholly or in part. Cases in which executions had been issued before the commencement of such year, but were returnable within such year, shall likewise be included.

In such lists there shall be stated the amount of each fine; the date of the judgment therefor and whom against; whether it has been paid to the sheriff or collector in court, or whether an execution has been issued therefor; what execution has issued, and if not issued, why not; to what officer it has been delivered; when returnable; whether returned or not, and what return is made thereon. If the execution be returned satisfied either wholly or in part, a copy of the return shall be certified, including the name of the officer by whom made. Any fine imposed by the court under the provisions of this article may be paid to the sheriff in open court, and the clerk shall note such payment on the record.

There shall be subjoined to the list a statement of every fine paid into the court as well as those for which an execution returnable before the commencement of the year ending on the said first day of July may have been returned with effect, either wholly or in part, during such year. A copy of the return on every such execution shall be certified, and likewise a statement of the proceeds of any insolvent’s estate surrendered for a fine, whereof a return may have been made during such year, with the name of the sheriff making such return.

For the services of the clerk under this section his fee shall be one dollar upon every such fine, which fee shall be taxed in the bill of costs.(Code 1849, c. 43, §§15-18; Code 1860, c. 43, §§15-18; Code 1868, c. 36, §§13-16; 1872-3, c. 228, §13; 1882, c. 41, §§13-16; Code 1923, c. 36, §§13-16.)

§13. Failure of Clerk to Transmit List of Fines; Penalty.—If any clerk shall fail to transmit the list to the auditor, as provided for in the preceding section, within the time and in the manner prescribed, or in case there be nothing of which he can make a return, if he shall fail to certify the fact to the auditor, such clerk, for every such failure (unless he shall show good cause therefor), shall forfeit one hundred dollars.(Code 1849, c. 43, §19; Code 1860, c. 43, §19; Code 1868, c. 36, §17; 1882, c. 41, §17; Code 1923, c. 36, §17.)

§14. How Fines Charged by Auditor; Sheriff’s Liability for Same; Repayment to Sheriff for Uncollected Fines.—Upon the receipt of the list aforesaid, the auditor shall charge the fines mentioned therein as follows: He shall debit the sheriff or other collecting officer with all the fines he has received, including such as have been paid to him in court, and also with the amount of any as to which an execution shall have been returnable on or before the first day of July, and not returned.

Such sheriff or other officer shall thereupon be liable for the money so charged to him, and shall account for and pay it at the time, in the manner, and under the penalties prescribed as to money received by such officers, respectively, under articles nine and twelve, chapter eleven of this Code. But in case it shall appear, by the return of an execution mentioned in this section, that the same has not been collected in whole or in part, the auditor shall credit the officer with the amount uncollected.

If any sheriff or other officer shall pay any amount so charged to him, and it shall afterward appear by the return on the execution therefor that nothing was received thereon, the auditor may thereupon issue a warrant on the treasury to refund the money so paid.(Code 1849, c. 43, §§20-22; Code 1860, c. 43, §§20-22; Code 1868, c. 36, §§18-20; 1882, c. 41, §§18-20; Code 1923, c. 36, §§18-20.)

§15. Limitation Upon Collection of Fines.—No prosecution by warrant for the recovery of a fine shall be commenced, unless it be done within one year after there was cause therefor, except in cases where a different limitation is prescribed by law.(Code 1849, c. 199, §11; Code 1860, c. 199, §11; Code 1868, c. 36, §21; 1882, c. 41, §21; Code 1923, c. 36, §21.)

§16. Offenders Against Municipal Ordinances May be Required to Work on Streets.—Whenever any person shall be convicted for any violation of ordinances or laws of any incorporated city, town or village, and shall be confined in the county jail, or place of confinement adopted and set apart by the council of such city, town or village, in lieu of the county jail, as a prison house, whether such person be imprisoned for failure to pay any fine adjudged against him, or under sentence of a mayor, police judge or court, he may be ordered by such mayor, police judge or court to work on the public streets and alleys of such city, town or village, under the direction of the marshal or sergeant of such city, town or village. Such person so fined and imprisoned, when ordered to be worked as hereinbefore provided, shall be worked under the provisions and subject to the penalties prescribed in article fifteen, chapter seventeen of this Code, in so far as the same are applicable. And the council of such city, town or village may make proper allowance to the marshal or sergeant to take charge of such person or persons while so at work, and allow and pay a reasonable compensation for the services rendered, out of the treasury of such city, town or village.(1891, c. 81, §22; Code 1923, c. 36, §22.)

§1. Payment of Witnesses.—Sections sixteen and seventeen of article one, and section sixteen of article two, chapter fifty-nine of this Code shall apply to a person attending as a witness under a recognizance or summons in a criminal case, as well as to a person attending under a summons in a civil case, except that in a criminal case, a person residing out of this State, who attends a court therein as a witness, shall be allowed by such court a proper compensation for attendance and travel to and from the place of his abode; the amount of the same to be fixed by such court.(Code 1849, c. 210, §4; Code 1860, c. 210, §4; Code 1868, c. 161, §4; Code 1923, c. 161, §4.)

§2. Payment of Witness Fees by Prosecutor.—The sum to which a witness is entitled who attends for the State, and any other legal charges incurred in a case wherein there is a prosecutor, shall be paid by such prosecutor as if he were the plaintiff in the case, unless there be a judgment against the defendant, in which case the same shall be taxed in the costs and paid to the persons entitled thereto, by the sheriff or other officer who may receive the same.(Code 1849, c. 210, §5; Code 1860, c. 210, §5; Code 1868, c. 161, §5; Code 1923, c. 161, §5.)

§3. Payment of Witness Fees in Misdemeanor Cases.—Payment shall not be made out of the treasury to a witness attending for the State in any prosecution for a misdemeanor, but the fees of witnesses in such cases, if not collected from the defendant or prosecutor, shall be audited by the county court and paid out of the county treasury.(Code 1849, c. 210, §6; Code 1860, c. 210, §6; Code 1868, c. 161, §6; 1872-3, c. 170; Code 1923, c. 161, §6.)

§4. Fees of Officer Executing Process or Rendering Service Not Specifically Provided for, Out of County, in Felony Cases.—A sheriff or other officer, for traveling out of his county to execute process in a case of felony and doing any act in the service thereof for which no other compensation is provided, shall receive therefor, out of the treasury, such compensation as the court from which the process issued may certify to be reasonable. When in such case an officer renders any service for which no specific compensation is provided, the court in which the case may be, may allow therefor what it deems reasonable, and such allowance shall be payable out of the treasury.(Code 1849, c. 210, §7; Code 1860, c. 210, §7; Code 1868, c. 161, §7; 1872-3, c. 170; Code 1923, c. 161, §7.)

§5. Certificate by the Court as to Fees and Expenses.—The certificate required by section fifteen, article one, chapter fifty-nine of this Code shall be made by the court in which the prosecution is, or to which the justice certifies, as hereinafter mentioned. Any other expense incident to a proceeding in a criminal case, which is payable out of the treasury, otherwise than under the preceding section, shall be certified by such court unless otherwise provided. With such certificate of allowance, there shall be transmitted to the auditor the vouchers on which it is made.

The entry of such certificate shall state how much thereof is on account of each person prosecuted.(Code 1849, c. 210, §§8, 9; Code 1860, c. 210, §§8, 9; Code 1868, c. 161, §§8, 9; Code 1923, c. 161, §§8, 9.)

§6. Expenses of Preliminary Hearing Before Justice Certified to Clerk.—A justice before whom there is any proceeding in a criminal case, preliminary to prosecution in a circuit court or other court of record having jurisdiction in criminal cases, shall certify to the clerk of such court all the expenses incident to such proceeding which are payable out of the treasury.(Code 1849, c. 210, §10; Code 1860, c. 210, §10; Code 1868, c. 161, §10; 1872-3, c. 170; Code 1923, c. 161, §10.)

§7. Execution for Expenses Incident to Prosecution.—In every criminal case the clerk of the court in which the accused is convicted shall, as soon as may be, make up a statement of all the expenses incident to the prosecution, including such as are certified to him by a justice under the preceding section; and execution for the amount of such expenses shall be issued and proceeded with, and article four of this chapter shall apply thereto in like manner as if, on the day of completing such statement, there was judgment in such court in favor of the State against the accused for such amount as a fine.(Code 1849, c. 210, §11; Code 1860, c. 210, §11; Code 1868, c. 161, §11; Code 1923, c. 161, §11.)

§8. Failure to Present Claim in Time.—If, by reason of the failure of a person to present his claim in due time, a sum be not included in such execution, which would have been included if so presented, such claim, unless there be good cause shown for the failure, shall be disallowed.(Code 1849, c. 210, §12; Code 1860, c. 210, §12; Code 1868, c. 161, §12; Code 1923, c. 161, §12.)

§9. No Fee to Prosecuting Attorney Out of State Treasury Unless Expressly Provided; No Judgment Against State for Costs.—No fee to any prosecuting attorney shall be payable out of the treasury, unless it be expressly provided. And in no case shall there be a judgment against the State for costs.(Code 1849, c. 210, §13; Code 1860, c. 210, §13; Code 1868, c. 161, §13; Code 1923, c. 161, §13.)

§1. Witnesses in Criminal Cases; Forced Attendance.—In a criminal case, a summons for a witness may be issued by the prosecuting attorney. Sections one, four, five, six and eight, article five, chapter fifty-seven of this Code shall, in other respects, apply to a criminal as well as a civil case, except that a witness in a criminal case shall be obliged to attend and may be proceeded against for failing to do so, although there may not previously have been any payment, or tender to him, of anything for attendance, mileage or tolls.(Code 1849, c. 211, §2; Code 1860, c. 211, §2; Code 1868, c. 162, §1; Code 1923, c. 162, §1.)

§2. When Recognizance Required; Contents.—A court or judge letting any person to bail shall require a recognizance to be given.

Recognizances in criminal cases shall be payable to the State of West Virginia. Every such recognizance shall be in such sum and with such surety as the court or officer requiring it may direct; and if it be of a witness, it may be with or without surety, as shall be deemed proper by the court or officer taking it. The condition, when it is taken of a person charged with a criminal offense, shall be that he appear before the court, judge, or justice, before whom the proceedings on such charge will be, at such time as may be prescribed by the court or officer taking it, to answer for the offense with which such person is charged; and when it is taken of a witness, in a case against such person, shall be that he so appear to give evidence on such charge; and in either case, shall be that a person or witness shall not depart thence without the leave of said court, judge or justice. When taken for any other purpose than to appear so to answer or give evidence, it shall be with condition that the person of whom it is taken shall keep the peace and be of good behavior for such time, not exceeding one year, as the court or officer requiring it may direct; and if such court or officer direct, it may, when taken of a person so charged, be with condition for so keeping the peace and being of good behavior, in addition to the other conditions of his recognizance.(Code 1849, c. 211, §§3, 4; Code 1860, c. 211, §§3, 4; Code 1868, c. 162, §§2, 3; Code 1923, c. 162, §§2, 3.)

§3. Recognizance of Lunatic or Minor.—A recognizance which would be taken of a person but for his being insane or a minor, may be taken of another person, and without further surety, if such other person be deemed sufficient.(Code 1849, c. 211, §5; Code 1860, c. 211, §5; Code 1868, c. 162, §4; Code 1923, c. 162, §4.)

§4. Failure to Give Recognizance; Commitment to Jail; Release.—A person not giving, and for whom no other person gives, a recognizance required shall be committed to jail. He shall be discharged therefrom when such recognizance is given before the court or justice; or if it be to appear and give evidence, when such evidence is given; or if it be to keep the peace and be of good behavior, when the period for which it was required has elapsed; or in any case, when the discharge of such person is directed by the court in whose jail he is.(Code 1849, c. 211, §6; Code 1860, c. 211, §6; Code 1868, c. 162, §5; Code 1923, c. 162, §5.)

§5. Recognizance Taken Out of Court.—A person taking a recognizance out of court shall forthwith transmit it to the clerk of the court for appearance before which it is taken, or, if it be not for appearance before a court, to the clerk of the circuit, intermediate or criminal court of the county in which it is taken, and it shall remain filed in the clerk’s office.(Code 1849, c. 211, §7; Code 1860, c. 211, §7; Code 1868, c. 162, §6; Code 1923, c. 162, §6.)

§6. Proceedings on Recognizance on Default.—When a person under recognizance in a criminal case, either as a party or witness, fails to perform the condition thereof, if it be to appear before a court, his default shall be recorded therein. The process on every recognizance shall be issued from the court before which the appearance was to be, or, if it be not for such appearance, from the court in which it was taken, or (when taken out of court), in whose office the recognizance remains filed; and in a proceeding in one court on a recognizance entered in another, a copy thereof shall be evidence in like manner as the original would have been, if entered in the court where the proceeding is. This and the preceding section shall not apply to recognizances taken by justices of the peace in criminal cases, under section six, article eighteen, chapter fifty of this Code.(Code 1849, c. 211, §8; Code 1860, c. 211, §8; Code 1868, c. 162, §7; Code 1923, c. 162, §7.)

§7. Payment by Surety in Recognizance; Remission of Penalty.—A surety in a recognizance may, after default, pay into the court from which process has issued or may issue thereon, or to the justice authorized to give judgment thereon under section six, article eighteen, chapter fifty of this Code, the amount for which he is bound, with such costs as the court or justice may direct, and be thereupon discharged.

When, in an action or scire facias on a recognizance, the penalty is adjudged to be forfeited, the court may, on application of a defendant, remit the penalty, or any part of it, and render judgment on such terms and conditions as it deems reasonable.(Code 1849, c. 211, §§9, 10; Code 1860, c. 211, §§9, 10; Code 1868, c. 162, §§8, 9; Code 1923, c. 162, §§8, 9.)

§8. No Recognizance Defeated if Substantially Sufficient.—No action or judgment on a recognizance shall be defeated or arrested by reason of any defect in the form of the recognizance, if it appear to have been taken by a court or officer authorized to take it, and be substantially sufficient.(Code 1849, c. 211, §11; Code 1860, c. 211, §11; Code 1868, c. 162, §10; Code 1923, c. 162, §10.)

§9. Surrender of Principal in Recognizance by Surety; New Bail.—A surety in a recognizance may at any time take his principal and surrender him to the court or judge before whom the recognizance was taken, or if it was taken by a court which is not in session, or by a justice, to the judge of such court, or a justice of the county in which it was taken; whereupon said surety shall be discharged from liability for any act of the principal subsequent thereto.

If the surrender be before a judge or justice, he shall give the surety a certificate thereof, and the accused may be let to bail anew for the residue of the term, or to appear as before required; and on failure so to recognize, shall be committed to jail as in other cases of failure to give bail. If the surrender be to the court, it shall take such order as it deems best.(Code 1849, c. 211, §§12, 13; Code 1860, c. 211, §§12, 13; Code 1868, c. 162, §§11, 12; Code 1923, c. 162, §§11, 12.)

§10. Failure of Juror to Attend Inquest Out of Court.—The name of any person summoned by an officer, and failing to attend as a juror upon an inquest out of court, shall be returned by such officer at the next term of the circuit court of such officer’s county. Such court shall fine such person, unless he have a reasonable excuse for his failure, ten dollars.(Code 1849, c. 211, §14; Code 1860, c. 211, §14; Code 1868, c. 162, §13; Code 1923, c. 162, §13.)

§11. Proceedings for Fines for Contempt or Disobedience of Process.—No court shall impose a fine upon a juror, witness, or other person, for disobedience of its process or any contempt, unless he be present in a court at the time, or shall have been served with a rule of the court, returnable to a time certain, requiring him to show cause why the fine should not be imposed, and shall have failed to appear and show cause.(Code 1849, c. 211, §15; Code 1860, c. 211, §15; Code 1868, c. 162, §14; Code 1923, c. 162, §14.)

§1. Stay of Proceedings.—Upon the application of any person entitled, under the provisions of article four, chapter fifty-eight of this Code, to an appeal or writ of error from a judgment in a prosecution for any offense or crime, the criminal court, intermediate court or other court of record of limited jurisdiction, or the judge of such court in vacation, shall make an order postponing the execution of the sentence for a reasonable time within which to prepare and present bills of exceptions to the trial court and until a reasonable time beyond the first day of the next regular term of the circuit court of the county.

Upon the application of any person entitled, under the provisions of article five, chapter fifty-eight of this Code, to an appeal or writ of error from the judgment a circuit court convicting him of any offense or crime, the circuit court or the judge thereof in vacation, shall make an order postponing the execution of the sentence for a reasonable time to enable him to prepare and present bills of exceptions and to secure a transcript of the evidence before the court at the trial, and until a reasonable time beyond the first day of the next term of the supreme court of appeals.(Code 1849, c. 209, §2; Code 1860, c. 209, §2; Code 1868, c. 160, §2; 1882, c. 128, §2; Code 1923, c. 160, §2.)

§2. Period of Stay When Writ of Error Awarded.—A writ of error, awarded under the provisions of article five, chapter fifty-eight of this Code to any judgment of a circuit court referred to in the preceding section, shall operate as a stay of proceedings in the case until the decision of the supreme court of appeals therein. A writ of error awarded under the provisions of article four, chapter fifty-eight of this Code, to any judgment of a court of record of limited jurisdiction, by a circuit court or the judge thereof, shall operate as a stay of proceedings in the case until the decision of the circuit court therein.(Code 1849, c. 209, §6; Code 1860, c. 209, §6; Code 1868, c. 160, §6; 1872-3, c. 174, §6; 1882, c. 128, §6; Code 1923, c. 160, §6.)

§3. Execution of Death Sentence.—Sentence of death, except for insurrection or rebellion, shall not be executed sooner than thirty days after the sentence is pronounced. The sentence of death shall, in every case, be executed by hanging the convict by the neck until he is dead. Such punishment shall be executed within the walls of the West Virginia penitentiary and not elsewhere, and within an inclosure to be prepared for that purpose, under the direction of the warden of the penitentiary and the authorities in control thereof, which inclosure shall be so constructed as to exclude public view; and the warden of the West Virginia penitentiary, or, in case of his death, absence or inability to act, a deputy warden, shall be the executioner; and for his services in executing such sentence, the said warden, or deputy warden, shall receive the sum of twenty-five dollars, to be paid out of any fund on hand appropriated for the maintenance and support of the West Virginia penitentiary.(Code 1849, c. 209, §§8, 9; Code 1860, c. 209, §§8, 9; Code 1868, c. 160, §§8, 9; 1899, c. 2; Code 1923, c. 160, §§8, 9.)

§4. Certificate of Death Sentence and Indictment to be Sent to Warden; Transfer of Convict to Penitentiary; Persons Present at Hanging.—The clerk of the court pronouncing the sentence of death shall, as soon as may be, after sentence, deliver a certified copy thereof to the proper officer of such court, who shall retain the custody of the person so sentenced to death until delivered to a properly authorized guard sent by the warden for the removal of such person to the penitentiary. And the clerk of such court shall also forthwith transmit, to the warden of the penitentiary, a copy of the indictment, conviction and sentence; and if the clerk fail to so transmit such certified copies as here provided, he shall forfeit one hundred dollars. And the warden shall, upon receipt of such copies, as soon as it may be, send a guard, or two guards at the most, to the place where such person is confined, to remove such person so sentenced to the penitentiary and there deliver him. And the said warden, or deputy warden, shall proceed, unless a suspension of execution be ordered, at the time and place named in such sentence, to cause the convict under sentence of death to be hung by the neck as provided in the preceding section of this article. At the execution there may be present, besides the officers of the court imposing such sentence, such other officers and such guards and assistants as the officer executing the sentence shall see fit. He shall request the presence of the prosecuting attorney in such court, the clerk thereof, and twelve respectable citizens, including a physican and surgeon, and such representatives of the press as he may desire; and he shall permit the presence of the counsel of the convict, and such ministers of the gospel as he shall desire, and such of the convict’s relations as the officer shall deem prudent.(Code 1849, c. 209; Code 1860, c. 209, §10; Code 1868, c. 160, §10; 1899, c. 2; 1904, c. 21; Code 1923, c. 160, §10.)

§5. Record of Execution.—The officer executing the sentence of death shall certify the fact to the clerk of the court by which such sentence was imposed, who shall file such certificate with the papers of the case and enter the same upon the records of such court.(Code 1849, c. 209, §10; Code 1860, c. 209, §11; Code 1868, c. 160, §11; 1899, c. 2; Code 1923, c. 160, §11.)

§6. Disposition of Body of Executed Convict.—If the friends and relatives of the convict shall desire and make request in writing to the warden, at any time within one day after the sentence of death has been executed, the body of the person executed shall be returned to such friends or relatives, in any county in the State, for burial. And the warden may draw his order on the auditor of the State for such sum as may be necessary to pay for the transportation of such body, and other expenses, not however, to exceed the sum of forty dollars, to be paid out of funds appropriated for criminal charges. And if no request is made by such friends or relatives as aforesaid, the body shall be disposed of as provided for other convicts dying within the penitentiary.(1899, c. 2; Code 1923, c. 160, §11a.)

§7. Custody of Convicts Prior to Removal to Penitentiary; Removal; Guards.—Every person sentenced to confinement in the penitentiary shall remain in the custody of the proper officer of the court pronouncing such sentence until he be delivered to a guard sent and duly authorized by the warden of the penitentiary for the removal of such person to the penitentiary. If such officer fail to make such delivery upon the request of such court, he shall forfeit one hundred dollars. The warden of the penitentiary shall, so far as consistent with the safe conveyance of prisoners to the penitentiary, cause as many prisoners from the same or several counties to be removed to the penitentiary at the same time, and to that end shall send with the guard authorized to receive such prisoners as many additional guards as are necessary for the purpose, having due regard to economy as well as to the safe conveyance of the prisoners. If in the judgment of the officer of the court pronouncing sentence any facts exist making proper the employment of more guards than usual, he shall bring such facts to the attention of the warden of the penitentiary. The necessary expenses of every such prisoner or convict during his removal to the penitentiary, as well as the necessary expenses of the guard sent for that purpose, shall be paid by the auditor out of the funds appropriated for criminal charges.(Code 1849, c. 209, §11; Code 1860, c. 209, §12; Code 1868, c. 160, §12; 1904, c. 21; Code 1923, c. 160, §12.)

§8. Prevention of Rescue or Escape; Additional Guards.—If on the way to the penitentiary or other place, in consequence of an attempt made, or reasonably apprehended, to rescue the prisoner, or in consequence of any other unforseen danger, the guard to whom such prisoner was delivered is satisfied that more guards than accompany him are necessary, he may summon such additional guards as are necessary, whose expenses shall be paid as provided for in section seven of this article.(Code 1849, c. 209, §15; Code 1860, c. 209, §16; Code 1868, c. 160, §16; 1904, c. 21; Code 1923, c. 160, §16.)

§9. Immunity of Guards From Arrest.—All guards while proceeding to the place where a prisoner is confined for the purpose of removing him to the penitentiary or other place, and while engaged in such removal, shall be privileged from arrest, except for felony and breach of the peace, such privilege to cover one day for each two hundred miles traveled by railroad and one day for each fifty miles traveled by other conveyances.(Code 1849, c. 209, §16; Code 1860, c. 209, §17; Code 1868, c. 160, §17; 1904, c. 21; Code 1923, c. 160, §17.)

§10. Transmission of Copy of Indictment, Conviction and Sentence by Clerk to Warden of Penitentiary.—The clerk of a court in which a person is sentenced to the penitentiary shall forthwith transmit to the warden thereof a copy of the indictment, conviction and sentence. If he fail to do so he shall forfeit one hundred dollars.(Code 1849, c. 209, §12; Code 1860, c. 209, §13; Code 1868, c. 160, §13; Code 1923, c. 160, §13.)

§1. Offenses by Convicts; Conspiracy.—A convict confined in the penitentiary, or in the custody of an officer thereof, shall be deemed guilty of a felony if he shall kill, wound, or inflict other bodily injury upon an officer or guard of the penitentiary; or shall escape from the penitentiary or such custody; or shall break, cut, or injure any building, fixture or fastening of the penitentiary, or any part thereof, for the purpose of escaping or aiding any other convict to escape therefrom, or rendering the penitentiary less secure as a place of confinement; or shall make, procure, secrete, or have in his possession, any instrument, tool, or other thing for such purpose, or with intent to kill, wound, or inflict bodily injury as aforesaid; or shall resist the lawful authority of an officer or guard of the penitentiary for such purpose, or with such intent. Any three or more convicts so confined, or in such custody, who shall conspire together to commit any offense mentioned in this section shall each be deemed guilty of a felony.(Code 1849, c. 214, §§1, 2; Code 1860, c. 214, §§1, 2; Code 1868, c. 164, §§1, 2; Code 1923, c. 164, §§1, 2.)

§2. Punishment of Convicts; No Discharge From Penitentiary While Prosecution is Pending.—A convict guilty of such killing as is mentioned in the first section of this article, or any act mentioned therein, from which death ensues to such officer or guard, shall be punished with death. For any other offense mentioned in said section, a convict, unless he be under a sentence of confinement for life, shall be confined in the penitentiary not less than one nor more than five years after the end of the term for which he shall then be subject to confinement, and, whether he be under such sentence for life or not, he shall be kept in solitary confinement for such portion of his confinement in the penitentiary as may be fixed by the jury, not being more than one-half nor less than one-twelfth part of the time that he may be confined therein, after being sentenced under this article; which solitary confinement may commence immediately on his being so sentenced, but shall not exceed one month at any one time. A person prosecuted for an offense under this article shall not be discharged from the penitentiary while such prosecution is pending. And a person convicted of such offense shall not, by reason thereof, be sentenced under sections eighteen or nineteen, article eleven, chapter sixty-one of this Code, except that, if a convict in the penitentiary shall commit any felony, other than is provided for in the first section of this article, which is punishable by confinement therein or with death, he shall suffer the same punishment as if he had been discharged before committing it.(Code 1849, c. 214, §§3, 4, 5; Code 1860, c. 214, §§3, 4, 5; Code 1868, c. 164, §§3, 4, 5; Code 1923, c. 164, §§3, 4, 5.)

§3. Venue of Trials of Convicts.—All criminal proceedings against convicts in the penitentiary shall be in the circuit court of the county of Marshall.(Code 1849, c. 215, §1; Code 1860, c. 215, §1; 1868, c. 105, §1; Code 1868, c. 165, §1; Code 1923, c. 165, §1.)

§4. Procedure in Sentencing Convicts to Further Confinement for Second and Third Offenses.—When a prisoner convicted of an offense, and sentenced to confinement therefor in the penitentiary, is received therein, if he was as before sentenced to a like punishment, and the record of his conviction does not show that he has been sentenced under sections eighteen or nineteen, article eleven, chapter sixty-one of this Code, the warden of the penitentiary shall give information thereof, without delay, to the said circuit court of the county of Marshall, whether it be alleged or not in the indictment on which he was so convicted, that he had been before sentenced to a like punishment. The said court shall cause the convict to be brought before it, and upon an information filed, setting forth the several records of conviction, and alleging the identity of the prisoner with the person named in each, shall require the convict named to say whether he is the same person or not. If he say he is not, or remain silent, his plea, or the fact of his silence, shall be entered of record, and a jury shall be impaneled to inquire whether the convict is the same person mentioned in the several records. If the jury find that he is not the same person, he shall be remanded to the penitentiary; but if they find that he is the same person, or if he acknowledge in open court, after being duly cautioned, that he is the same person, the court shall sentence him to such further confinement as is prescribed by article eleven, chapter sixty-one of this Code, on a second or third conviction, as the case may be.(Code 1849, c. 215, §§2, 3, 4, 5; Code 1860, c. 215, §§2, 3, 4, 5; 1868, c. 105, §2; Code 1868, c. 165, §§2, 3, 4, 5; Code 1923, c. 165, §§2, 3, 4, 5.)

§5. Prosecutions for Offenses Under This Article; Procedure Prior to Trial.—Upon complaint in writing, under oath, presented to the circuit court of Marshall county, or to the judge thereof in vacation, that any convict in the penitentiary has committed an offense punishable under sections one and two of this article, proceedings may be had for such offense, either at a regular term of the court, or at a special term, to be appointed by its order, or by the warrant of the judge directed to the clerk of the court, who shall give notice of such special term to the prosecuting attorney and other officers of the court. The clerk shall issue all necessary process; and a grand jury and a venire shall be summoned to attend at the time appointed in such warrant, or at such time as the court may direct. The judge of the said court, when an indictment is found against the accused, shall issue a warrant to the warden of the penitentiary to bring him before the court, as well as any other persons confined in the penitentiary who are required as witnesses on either side.(Code 1849, c. 215, §§6, 7, 8; Code 1860, c. 215, §§6, 7, 8; Code 1868, c. 165, §§6, 7, 8; Code 1923, c. 165, §§6, 7, 8.)

§6. Convicts Competent Witnesses; Procedure of Trial.—In any such prosecution of convicts, all other convicts in the penitentiary shall be competent witnesses for or against the accused. In all other respects, the proceedings, trial, judgment and sentence shall be had, pronounced and executed, as in other cases for prosecutions for offenses punishable with death or confinement in the penitentiary.(Code 1849, c. 215, §9; Code 1860, c. 215, §9; Code 1868, c. 165, §9; Code 1923, c. 165, §9.)

§1. General Form of Indictments.—All indictments in this State, if procured, found and returned in all other respects as provided by law, shall be sufficient if in the following form:

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

The grand jurors of the State of West Virginia, in and for the body of the county of ........................., upon their oaths present that A......................, on the...........day of...................., 19......., in the said county of........................, did unlawfully (or unlawfully and feloniously, as the case may be) (here describe the offense in the language, purport or tenor of the statute as near as may be), against the peace and dignity of the State.

Found upon the testimony of............................., duly sworn in open court to testify the truth and sent before the grand jury, this the.....................day of........................, 19........

(Signed)......................................

Prosecuting Attorney.

Said indictment shall have legibly indorsed on the reverse side thereof the words “State of West Virginia versus.................... Indictment for a............................. (Felony or Misdemeanor, as the case may be).

.........................Foreman of the Grand Jury.

Attest:.............................., Prosecuting Attorney of...........................county, West Virginia.”

Of such indictment a true and complete record shall be made and kept by the clerk of the court in which the indictment is found and returned, and it shall be necessary to state thereon whether such indictment be for a felony or a misdemeanor.

§2. Indictment for Treason.—An indictment for treason shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A....................................., being a person owing allegiance to the State of West Virginia, on the............................day of................................, nineteen........................................, in the said county of........................, did then and there, in violation of his said duty of allegiance, maliciously and traitorously counsel and abet, and combine, confederate and agree together with B...................... and C....................... (and any other persons) (or all such persons, if known, may be made joint defendants and jointly indicted), and divers other persons to the number of.................. (or to a number unknown), whose names are to the jurors unknown, all of whom, both said known and unknown persons, were then and there owing allegiance to the State of West Virginia, did then and there maliciously and traitorously (here state the acts of treason, such as gathering together men for war, collecting munitions, counseling the same, giving aid and comfort to the enemy of the State, etc.), and the said A................ (or together with B................. and C.............., etc., as the case may be) did then and there maliciously and traitorously, and contrary to his said duty of allegiance to the State of West Virginia, (here set out the act done, such as command or lead the army, etc., according to the facts of the case), against the peace and dignity of the State.

§3. Indictment for Murder.—An indictment for murder shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A.............................., on the...............day of.............................., nineteen.............................., in the said county of.............................., feloniously, willfully, maliciously, deliberately and unlawfully did slay, kill and murder one B.............................., against the peace and dignity of the State.

Upon the trial of such indictment the accused may be convicted of either murder of the first degree, murder of the second degree, voluntary manslaughter, or involuntary manslaughter, as the evidence may warrant.(1882, c. 118, §1; Code 1923, c. 144, §1.)

§4. Indictment for Voluntary Manslaughter.—A grand jury may, in a case of homicide, which in their opinion amounts to manslaughter only, and not to murder, find an indictment against the accused for manslaughter, and in such case the indictment shall be sufficient, if it be in form, tenor or effect as follows (after following the form in section one):

That A.............................., on the...............day of.............................., nineteen............................ in the said county of........................., feloniously and unlawfully did kill and slay one B..............., against the peace and dignity of the State.

Upon the trial of such indictment the accused may be convicted of either voluntary or involuntary manslaughter, as the evidence may warrant.(1882, c. 118, §1; Code 1923, c. 144, §1.)

§5. Indictment for Abortion.—An indictment for abortion shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A.................................., on the............... day of..........................................................., nineteen.........................................., in the said county of................................, did feloniously, willfully and unlawfully administer to one B....................., a female, being then and there pregnant with child, a quantity of medicine (or did feloniously, willfully and unlawfully employ and use upon the body and womb of one B......................................................., a female, being then and there pregnant with child, a certain instrument called.......................................................)(or the name of which instrument is to the jurors unknown), with intent then and thereby to procure the miscarriage of the said B......................................., it not being then and there done by A.......................................... in good faith with the intention of saving the life of such woman or her child, against the peace and dignity of the State.

§6. Indictment for Robbery.—An indictment for robbery shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A......................................, on the............... day of.............................................., nineteen.........................................., in the said county of...................., being armed with a dangerous and deadly weapon (if not armed, leave out allegation of being armed), in and upon one B............................an assault did feloniously make, and him, the said B.................................., did then and there feloniously put in bodily fear, and (here set out the articles of money stolen, as the case may be), all the property of the said B............................, and lawfully in his control and custody, from the person of the said B.................................., and against his will, then and there feloniously and violently did steal, take and carry away, against the peace and dignity of the State.

§7. Indictment for Rape.—An indictment for rape shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A......................................, on the.............. day of............................, nineteen........................., in the said county of.................................., in and upon one B...................................., a female person not his wife, violently and feloniously did make an assault, and her, the said B..................., then and there violently and against her will feloniously did ravish and carnally know, against the peace and dignity of the State.

And if the female be a child under the age of sixteen years, the indictment shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A......................................, on the............... day of............................, nineteen........................., in the said county of................................, in and upon one B.................................., a female child, not his wife, under the age of sixteen years, did feloniously make an assault, and her, the said B...................................., then and there did feloniously and carnally know, against the peace and dignity of the State.

§8. Indictment for Arson.—An indictment for arson shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one): That A......................................, on the............... day of............................, nineteen.........................., in the said county of................................, in the nighttime (or daytime), did feloniously, maliciously and unlawfully set fire to and burn (or, by the use of dynamite, nitroglycerine, or other explosive or inflammable chemical or substance, did destroy in whole or in part), the dwelling house of another, to-wit, the dwelling house of......................................, (or any jail or prison, or any hotel, asylum, hospital, or other building in which persons usually dwell or lodge, or any railroad car, boat, or other car or vessel, or tent or temporary dwelling, in which persons usually travel, dwell or lodge), or did feloniously, maliciously and unlawfully set fire to anything (naming the thing fired), by the burning whereof such dwelling house (jail, prison, hotel, asylum, etc.) was burned, in the nighttime, against the peace and dignity of the State.

§9. Indictment for Burglary.—An indictment for burglary shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A......................................, on the............... day of............................, nineteen................., about the hour of..................., in the night of the same day, in the said county of.........................., the dwelling house of one B........................, there situate, feloniously and burglariously did break and enter, with intent the goods and chattels of...................................., in the said dwelling house then and there being, then and there feloniously and burglariously to steal, take and carry away; and then and there in the said dwelling house, .......................... (here name the property, money or goods), of the value of ..........................................(describing each article stolen and the value thereof and the total value), of the goods and chattels (or money) of the said B................................, (or whoever the goods or money belonged to), in the said dwelling house then and there found, then and there feloniously and burglariously, did steal, take and carry away, against the peace and dignity of the State.

And instead of describing burglary with intent to commit larceny, the indictment may charge any other felony thus: burglary with intent to commit rape, as, after the form herein is followed to the charge of the offense, “with intent in the said dwelling house feloniously and burglariously to ravish and carnally know one C............................, forcibly and against her will,” and “then and there in the said dwelling house did feloniously and burglariously ravish and carnally know the said C............................, forcibly and against her will, against the peace and dignity of the State.” And burglary with intent to commit any felony may be charged in the same count.

An indictment for entering a dwelling house or an outhouse adjoining thereto, of another, in the nighttime without breaking, or in the daytime by breaking and entering, may be in the following form, tenor or effect (after following the form in section one):

That A......................................, on the............... day of............................., nineteen........................., in the said county of..................................., in the nighttime of said day, the dwelling house (or outhouse etc., describing the same) of one B..........................................then and there found, did feloniously and burglariously enter without breaking (or, if it be in the daytime, use the words “in the daytime of said day” etc., “did feloniously and burglariously break and enter,” etc.), with intent the goods and chattels of B..................................therein found, feloniously and burglariously to take, steal and carry away; and then and there in said dwelling house (or outhouse etc.), one.....................................and one...............................and..................................... dollars in money, etc., of the value of................... dollars, goods, chattels and money of the said B............................. then and there found, did feloniously and burglariously take, steal and carry away, against the peace and dignity of the State.

And for entering without breaking, in the daytime, the same form shall be sufficient, without alleging therein that the act was done “burglariously.”

§10. Indictment for Larceny.—An indictment for larceny shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A......................................, on the............... day of............................., nineteen........................., in the said county of......................................, one (here describe the property or articles stolen, giving value of separate items) of the value of..........................................dollars, of the money, goods, effects and property of B..........................., feloniously did steal, take and carry away, against the peace and dignity of the State.

And if the offense be petit larceny, the word “unlawfully” shall be substituted for the word “feloniously” in the form aforesaid, and after the word “aforesaid” the words “and within one year before the finding of this indictment” shall be inserted.

§11. Indictment for Embezzlement.—An indictment for embezzlement shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A....................................., on the............... day of........................., nineteen........................, in the said county of......................................, did feloniously embezzle, fraudulently convert to his own use and steal certain bullion, money, bank notes, drafts, securities for money and other effects and property of and belonging to B........................................, to-wit: (here describe the property if it can be done, if not state ‘the description, name, denomination or title of the said bank notes, etc., drafts, securities for money or other effects and property of the said B......................................are to the grand jurors unknown’), of the value of.......................dollars, he, the said A.................................., having then and there in his possession such bullion, money, bank notes, drafts, securities for money and other effects and property by virtue of a certain office, place and employment, to-wit: (here describe the office, place or employment), against the peace and dignity of the State.

And it shall not be necessary to describe in the said indictment, or to identify on the trial, the particular money, bullion, note, draft, bill or security for money, which is so taken and embezzled.(1903, c. 18; Code 1923, c. 145, §19.)

§12. Indictment for False Pretenses.—An indictment for false pretenses shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A......................................, on the.............. day of............................., nineteen.................., in the said county of.............................., did unlawfully, fraudulently, designedly and feloniously falsely pretend to one B...................................... that (here set out the fraudulent misrepresentations), by means of which fraudulent and false pretenses the said A...................................... did then and there feloniously and unlawfully obtain (here state the money or property obtained) of the property, goods and chattels of B......................................, against the peace and dignity of the State.

And where goods which may be the subject of larceny are obtained on credit by false pretenses by the representation by the accused that there is money due or to become due him, and he shall assign the claim for such money in writing to the person from whom such money, goods or other property is obtained, and shall afterwards collect the same without the consent of the assignee, with intent to defraud, the indictment shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A................................., on the...............day of............................, nineteen........................, in the said county of........................, did unlawfully, fraudulently, designedly and feloniously falsely pretend and represent to one B......................... that there was a certain sum of money due to him, the said A.........................., from one C............................., and did then and there assign in writing to the said B.................. the said sum of money so claimed to be due him from the said C..............................., whereupon and by means of which, the said A...................... did then and there obtain, falsely, fraudulently and feloniously, from the said B......................... (here state and describe the money, goods and property of the said B......................, so obtained, and the value thereof), of the money, goods and property of the said B........................, and the said A.......................... afterwards, to-wit, on or about the.............. day of................................, nineteen..................................., did fraudulently and feloniously collect from said C.................. the money so assigned to the said B.................., without the consent of the said B.................. first obtained, against the peace and dignity of the State.

§13. Indictment for Taking, Injuring or Destroying Property.—An indictment for taking and carrying away, injuring, destroying or defacing real and personal property, shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A....................................., on the............... day of..........................., nineteen........................, in the said county of....................................., and within one year before the finding of this indictment, did unlawfully, but not feloniously, * take and carry away, destroy, injure and deface the following personal property, not his own, to-wit: (here describe the property; or if it be real property, after the star state ‘destroy, injure and deface the following real property, not his own, to-wit:’ here describe it), against the peace and dignity of the State.(1882, c. 148; Code 1923, c. 145, §27.)

§14. Indictment for False Statement of Financial Condition.—An indictment for obtaining credit, loan, etc., by false statement in writing, shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A...................................., on the.............. day of.........................., nineteen........................, in the said county of.........................., and within one year before the finding of this indictment, with intent to cheat and defraud B.................., then and there knowingly, unlawfully, designedly and falsely did make a certain statement in writing (or cause the same to be made, as the case may be), with intent that the said statement in writing be relied upon, which said statement in writing was as follows (here copy, or set forth the full intent and meaning of said statement in writing), (or state that he made said writing on behalf of any person, firm, or corporation in whom or in which he was interested), and which said statement was with respect to the financial condition, means and ability of himself (or of the person, firm or corporation in whom or which he was interested or for whom he was acting), by which false, unlawful and designed statement in writing, he, the said A........, did obtain from said B.......................a certain (here state what the credit obtained was, such as the extension of credit, or the making of a loan, discount of account receivable, indorsement of a note, etc., as the case may be), which said statement in writing the said A................... then and there knew to be false and untrue, and which said false statement was relied on by the said B......................, by reason of which the said A.............................. did obtain from the said B.........................the (here describe the credit or other thing obtained), unlawfully, against the peace and dignity of the State.

§15. Indictment for Giving Worthless Check.—An indictment for giving a worthless check shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A...................................., on the.............. day of..................., nineteen........................, in the said county of............................., did unlawfully and feloniously (if for a felony, or ‘did unlawfully,’ if for a misdemeanor) issue and deliver unto B........................., for value, his certain check (or draft) of the words and figures following: (here copy check or draft), when he, the said A.........................., knowingly did not have sufficient funds on deposit in or credit with the said..................bank of................ with which to pay said check (or draft), against the peace and dignity of the State.(1911, c. 76; Code 1923, c. 145, §34; 1929, c. 41.)

§16. Indictment for the Forgery of Writings.—An indictment for the forgery of any writing shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A....................., on the.............. day of............................, nineteen........................., in the said county of......................., did falsely and feloniously forge a writing on paper (here describe it, such as ‘a promissory note of the words and figures following;’ copying the note or fully describe the paper and the signature forged, or indorsed, as the case may be), the prejudice of another’s right, and with intent to defraud, and the said A..........................then and thereafterward, with the intent to defraud one B..........................., feloniously did utter and attempt to employ the same as true, to the prejudice of another’s right and knowing the same to be forged, against the peace and dignity of the State.

§17. Indictment for Perjury.—An indictment for perjury shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That on the...............day of.............................., nineteen................................, in the said county of..............................., before the........................... court of said county of.............................., on an issue within the jurisdiction of the said court duly joined, and trial thereof before a jury of the county, between the State of West Virginia, plaintiff, and D.........................., the defendant, for a felony, A.........................was in due form of law sworn by said court (or clerk or whoever administered the oath to the witness), having competent authority to administer to him the oath to speak the truth, the whole truth and nothing but the truth, touching the matters then and there in controversy between the State of West Virginia and the said D.......................... Whereupon, and upon said trial for a felony, it became then and there a material question to said issue upon said trial, whether (here say what the material question was in detail), and to this material matter the said A....................... then and there willfully, falsely, corruptly and feloniously did testify and say, in substance and effect, that (here set out the testimony of A...........................on said material issue as nearly exact as the same can be done); whereas, the said A..........................., in truth and in fact, well knew that the said statement and testimony (here state clearly the proper denial of the truth, stating the allegation to suit the particular case), against the peace and dignity of the State.

§18. Indictment for Disturbing Religious Worship.—An indictment for disturbing religious worship shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A................................, on the............... day of............................., nineteen........................., in the said county of.................................., and within one year before the finding of this indictment, did willfully interrupt, molest and disturb an assembly of people then and there met for the worship of God, against the peace and dignity of the State.(1882, c. 123, §18; Code 1923, c. 149, §18.)

§19. Indictment for Bigamy.—An indictment for bigamy shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A......................................, on the............... day of............................., nineteen........................., in............................................county in the State of...................................., did intermarry with, in due form of law, one B........................, and have her for his wife (or him for her husband), and afterward, while he (or she) was so lawfully married to the said B.........................., the said A...........................did feloniously and unlawfully marry and take to wife (or husband) one C........................................, on the..................day of..............................., nineteen..............................., in the county of..................................in the State of West Virginia, the said B.............................. being still alive, against the peace and dignity of the State.

And if the bigamous marriage took place out of the State and parties thereafter cohabit in this State, the indictment should so allege that fact.

§20. Indictment for Adultery.—An indictment for adultery and fornication shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A......................................, on the.............. day of............................., nineteen........................., in the said county of.............................., and within one year before the finding of this indictment, did commit adultery and fornication with one B............., against the peace and dignity of the State.(1882, c. 123, §6; Code 1923, c. 149, §6.)

§21. Indictment for Keeping House of Ill Fame.—An indictment for keeping a house of ill fame, assignation house or house of like character, shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one):

That A......................................., on the............... day of ......................., nineteen..........................., in the said county of......................................., and within one year before the finding of this indictment, did unlawfully keep and maintain a certain house of ill fame, assignation house or house of like character, resorted to for the purposes of prostitution and lewdness, against the peace and dignity of the State.

And for letting a house for like purposes, the indictment shall be sufficient if it be in the following form, tenor or effect (after following the form in section one):

That A......................................., on the............... day of..........................., nineteen..........................., in the said county of..........................., and within one year before the finding of this indictment, being the owner of a certain house then and there situate in said county at..........................., did then and there unlawfully and knowingly lease, let, rent and permit the same to be rented, leased and used, unlawfully and knowingly, by B...............................for the purpose of prostitution and lewdness, against the peace and dignity of the State.

§1. Security to Keep the Peace.—Every justice of the peace shall have the power to require, from persons not of good fame, security for their good behavior and to keep the peace, for a term not exceeding one year.(Code 1849, c. 201, §1; Code 1860, c. 201, §1; Const. 1863, art. 7, §9; 1863, c. 132, §1; Code 1868, c. 153, §1; Const., art. 8, §28; Code 1923, c. 153, §1.)

§2. Intended Offense; Complaint; Warrant.—If complaint be made to any justice, that there is good cause to fear that a person intends to commit an offense against the person or property of another, he shall examine the complainant on oath, and any witnesses who may be produced, reduce the complaint to writing, and cause it to be signed by the complainant. If it appear proper, such justice shall issue a warrant, reciting the complaint, and requiring the person complained of forthwith to be apprehended and brought before him or some other justice of the county.(Code 1849, c. 201, §§2, 3; Code 1860, c. 201, §§2, 3; Const. 1863, art. 7, §9; Code 1868, c. 153, §1; 1863, c. 132, §1; Const., art. 8, §28; 1882, c. 110; Code 1923, c. 153, §§2, 3.)

§3. Hearing; Judgment; Appeal.—When such person appears, if the justice, on hearing the parties, consider that there is not good cause for the complaint, he shall discharge such person, and may give judgment in his favor and against the complainant for his costs. If he consider that there is good cause therefor, he may require a recognizance of the person against whom it is, and give judgment against him for the costs of the prosecution, or any part thereof; and, unless such recognizance be given, he shall commit him to jail, by a warrant, stating the sum the time for and in which the recognizance is directed. The justice giving judgment under this section for costs may issue a writ of fieri facias thereon, if an appeal be not allowed; and proceedings shall be had thereupon, as provided by section eight, article eighteen, chapter fifty of this Code for the collection of fines and costs in criminal cases by justices. A person from whom such recognizance is required may, on giving it, appeal to the circuit court of the county; and in such case the justice from whose judgment the appeal is taken shall recognize such of the witnesses as he may deem proper.(Code 1849, c. 201, §§4, 5; Code 1860, c. 201, §§4, 5; Code 1868, c. 153, §§4, 5; Code 1923, c. 153, §§4, 5.)

§4. Proceedings on Appeal; Discharge From Commitment by Circuit Court.—The court may dismiss the complaint, or affirm the judgment, and make such order as it may deem proper as to the costs. If it award costs against the appellant, the recognizance which he may have given shall stand as surety therefor. When there is a failure to prosecute the appeal, such recognizance shall remain in force, although there be no order of affirmance. On any appeal the court may require of the appellant a new recognizance if it deem proper. Any person committed to jail under this article may be discharged by the circuit court, or the judge thereof in vacation, upon such terms as may be deemed reasonable.(Code 1849, c. 201, §§6, 7; Code 1860, c. 201, §§6, 7; Code 1868, c. 153, §§6, 7; Code 1923, c. 153, §§6, 7.)

§5. Recognizance in Carrying Weapons.—If any person go armed with a deadly, dangerous or prohibited weapon, in violation of any of the provisions of article seven, chapter sixty-one of this Code, he may be required to give a recognizance, with the right of appeal, as before provided, and like proceedings shall be had on such appeal.(Code 1849, c. 201, §8; Code 1860, c. 201, §8; Code 1868, c. 153, §8; 1882, c. 110; Code 1923, c. 153, §8.)

§6. Offenses in Presence of Constable; Duties of Constable; Procedure.—If any person shall, in the presence of a constable and within his county, make an affray, or threaten to beat, wound or kill another, or to commit violence against his person or property; or contend with angry words to the disturbance of the peace; or improperly or indecently expose his person; or appear in a state of gross intoxication in a public place; such constable may, without warrant or other process, or further proof, arrest such offending person and take him before some justice of the county in which such offense is committed, who, upon hearing the testimony of such constable and other witnesses, if any are then and there produced, if, in his opinion the offense charged be proved, shall require the offender to give bond or recognizance, with surety, to keep the peace and be of good behavior for a term not exceeding one year.(Code 1849, c. 201, §9; Code 1860, c. 201, §9; 1863, c. 132, §11; Code 1868, c. 153, §9; 1882, c. 110; Code 1923, c. 153, §9.)

§7. Offenses in Presence of Justice; Penalty; Procedure.—If any offense enumerated in section six of this article be committed in the presence of a justice within his county, or, the offender being brought before him, the commission thereof be proved to his satisfaction, he may, besides requiring a bond or recognizance with surety, as provided in the preceding section, impose a fine upon the offender not exceeding five dollars. If such bond or recognizance be not then and there given, or such fine be not then and there paid, such justice shall commit the offender to the jail of his county, there to remain until such bond or recognizance be given, and such fine be paid; but no imprisonment under this section shall continue more than ten days, at the end of which the sheriff or jailer shall discharge the prisoner, unless he has been commanded by proper authority to detain him for some other cause.(1863, c. 132, §2; Code 1868, c. 153, §10; Code 1923, c. 153, §10.)

§8. Special Peace Officers at Fairs; Duty to Arrest for all Offenses Committed at Fairs.—It shall be lawful for any justice of the peace, on the application of any of the officers of any state, county, or independent agricultural and mechanical association, agricultural society or industrial association of this State, to appoint a suitable number of discreet persons to assist in keeping the peace during the time when any such society shall be holding its annual or other fairs, and make an entry in his docket of the names of all such persons he shall so appoint.

All such persons so appointed by a justice shall have full power, and it shall be their duty, to suppress all riots, disturbances and breaches of the peace that may occur on such fair grounds, or within one mile thereof, during the time such fairs are being held, and may, upon view, arrest any person who may, at such time and place, be guilty of violating any law of this State, and may pursue and arrest any such person anywhere in the State, and bring him before any justice of the county in which such offense was committed; and the justice, if he considers that there is sufficient cause to charge the party with violating the law, shall certify to the circuit court, or other court of record having jurisdiction in criminal cases in the county, the nature and character of the offense, and shall take from the party a recognizance, with good security, in the sum of not less than one hundred nor more than five hundred dollars, conditioned for his appearance before such court and to answer any indictment that may be made against him, and not to depart without the leave of the court, and for his keeping the peace and being of good behavior until he shall appear before said circuit court; and the justice shall immediately transmit such certificate and recognizance to the clerk of such court, together with a list of the witnesses on the part of the State. Should the party fail to enter into such recognizance, the justice shall commit him to the county jail for trial, and shall make out a warrant of commitment to the jailer, who shall detain him in his custody until discharged by order of such court, unless he sooner enter into such recognizance before some justice of the county. Should such last named recognizance be entered into, the justice taking the same shall transmit it to the clerk of the circuit court; and the justice making such commitment shall transmit a copy of it to said clerk, together with a list of the witnesses on the part of the State.[1872-3, c. 115, §§1, 2; 1883, c. 69; Code 1923, c. 149, §22a(1) (2).]