W. Va. Code » §61-2-10. Assault during commission of or attempt to commit a felony; penalty.
West Virginia Code

W. Va. Code § 61-2-10 (2026)

Assault during commission of or attempt to commit a felony; penalty

✓ current as of May 2026
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ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-10. Assault during commission of or attempt to commit a felony; penalty.

If any person in the commission of, or attempt to commit a felony, unlawfully shoot, stab, cut or wound another person, he shall be guilty of a felony and, upon conviction, shall, in the discretion of the court, either be confined in the penitentiary not less than two nor more than ten years, or be confined in jail not exceeding one year and be fined not exceeding $1,000.

Notes of Decisions
Cited in 26 cases (7 in the last 5 years), 1997–2026 · leading case: State v. McGilton, 729 S.E.2d 876 (W. Va. 2012).
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State v. McGilton, 729 S.E.2d 876 (W. Va. 2012). · cites it 8× “Code § 61-2-9(a), and one count of assault during commission of, or attempt to commit, a felony under W.Va.Code § 61-2-10. 5 During the first day of trial, however, the circuit court granted the petitioner’s motion to dismiss the single count of assault during commission of, or…”
State v. Penwell, 483 S.E.2d 240 (W. Va. 1997). · cites it 16× “Code § 61-2-12 (Count I), 1 assault during the commission of a felony, in violation of W.Va.Code § 61-2-10 (Count II), 2 obstructing a police officer, in violation of W.”
State of West Virginia v. Ryan L. Henson State of West Virginia v. Kerr S. Reigh State of West Virginia v. Jonathan W. Physioc, 806 S.E.2d 822 (W. Va. 2017). · cites it 3× “In short, W. Va. Code § 61-2-10 acts as an enhancement statute where conduct otherwise defined as felonious is executed in such a manner that another person—a victim of the underlying felony or a witness or other bystander—is shot, cut, stabbed, or wounded in the process.”
State ex rel. Games-Neely v. Silver, 697 S.E.2d 47 (W. Va. 2010). · cites it 3× “2d at 245 (citing W.Va.Code § 61-2-10). By enacting the offense of assault during the commission of a felony, we determined that the Legislature “clearly intended to impose punishment in addition to that specified for the underlying felony, if the criminal actor shot, cut,…”
United States v. Robert Vederoff, 914 F.3d 1238 (9th Cir. 2019). “§ 16-3-600 ; W. Va. Code § 61-2-10 . 9 Alaska Stat. § 11.”
State Ex Rel. Games-neely v. Silver, 697 S.E.2d 47 (W. Va. 2010). · cites it 3× “2d at 245 (citing W.Va.Code § 61-2-10). By enacting the offense of assault during the commission of a felony, we determined that the Legislature "clearly intended to impose punishment in addition to that specified for the underlying felony, if the criminal actor shot, cut,…”
State of West Virginia v. Marcus Stephen Sanders, 827 S.E.2d 214 (W. Va. 2019). “Other crimes that provide for punishment for the bodily injury of a person during the commission of a crime include: malicious or unlawful assault, assault, and battery, *222 West Virginia Code § 61-2-9 (2014 and 2018 Supp.”
State of West Virginia v. Michael Paul Conn (W. Va. 2022). · cites it 12× “” See W. Va. Code § 61-2-10 . Both the actus reus and the attendant circumstances are elements of the crime.”
State of West Virginia v. Michael Paul Conn (W. Va. 2022). · cites it 12× “” See W. Va. Code § 61-2-10 . Both the actus reus and the attendant circumstances are elements of the crime.”
State of West Virginia v. Michael Paul Conn (W. Va. 2022). · cites it 8× “See W. Va. Code § 61-2-10 . In 2000, the West Virginia Legislature amended the sexual offender registry requirements set forth in the Act.”
State of West Virginia v. Nathaniel Edward Burroughs (W. Va. 2022). · cites it 8× “Petitioner’s third assignment of error claims that the circuit court erred by failing to dismiss the charge of assault during the commission or attempted commission of a felony in violation of West Virginia Code § 61-2-10 5—set forth in the second count in the indictment—because…”
State of West Virginia v. Joseph L. Stephens, Sr. (W. Va. 2016). · cites it 3× “West Virginia Code § 61-2-10, “Assault during commission of or attempt to commit a felony,” states, in relevant part, that “[i]f any person in the commission of, or attempt to commit a felony, unlawfully shot, stab, cut or wound another person, he shall be guilty of a felony .”
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W. Va. Code § 61-2-10(b): 1 case
State of West Virginia v. Nathaniel Ray Wegman (W. Va. 2019).
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