dissenting:
Believing that the portion of the decision of the majority of the members of the Court which is embodied in *784the third point of the syllabus represents a drastic, unwarranted and unwise departure from the previous law of this state, statutory and otherwise, I respectfully register my dissent.
That, until this time, the law of this state has been otherwise is evidenced by the fact that all research made in relation to the question by competent counsel and by members of the Court has failed to disclose a single reported decision of the Court, from the birth of the state to this date, involving a plea of nolo contendere to an indictment charging a felony. Humbly acknowledging the limitations upon the range of my own previous experience and observation, I nevertheless state that this represents the first time I have heard of an individual being sentenced to the penitentiary by a court of this state upon such a plea. This dearth of precedent alone, it seems to me, should be sufficient to dictate the exercise of prudence and caution before engrafting on the law of criminal procedure of the state this novel and dubious proposition.
By virtue of both constitutional and statutory provision, the common law remains in force in this state, except as altered by statute. Code, 2-1-1; Constitution, Article VIII, Section 21. The majority opinion does not and cannot point to any portion of the common law of England or of Virginia, specifically authorizing a plea of nolo contendere to all indictments for felonies, except capital offenses. The mother state of Virginia, from which we originally derived the bulk of our law, faced an identical problem, and the Supreme Court of Appeals of that state attached itself to more secure moorings by holding that, under the common law in force in relation to the proposition, such a plea could not be accepted in a felony case. Roach v. Commonwealth, 157 Va. 954, 162 S. E. 50. In the case of Schad v. McNinch, 103 W. Va. 44, 49, 136 S. E. 865, 867, which involved the question whether imprisonment as well as fine was proper upon such a plea in a misdemeanor case, this Court somewhat laboriously arrived at the conclusion: “According to the *785quoted decisions involving the common law construction of such a plea, the weight of authority authorizes courts to entertain it, or not, at their discretion, in that class of misdemeanors for which punishment must be imposed by fine, imprisonment, or both.” (Italics supplied).
The majority opinion states that the plea of nolo com tendere has not been in use in England since 1702. Since the Constitution of this state and Code, 2-1-1 both became effective long thereafter, it may be questionable whether we have ever adopted any portion of the common law of England relating to a plea of nolo contendere. Certain it is that neither by constitutional nor statutory provision have we ever adopted an authorization of a plea of nolo contendere to a felony indictment, for the very good reason that it is impossible to determine that such was ever a part of the common law of England or of Virginia. It is axiomatic that “only the Legislature has the power to change” the common law. State v. Arbogast, 138 W. Va. 672, 675, 57 S. E. 2d 715, 717.
The majority opinion quotes a portion of 22 C.J.S., Criminal Law, Section 425, page 659. Other portions thereof are as follows: “The so-called plea of ‘nolo con-tendere’, which is still allowed in some jurisdictions, is not a plea in the strict sense of that term in the criminal law, but a formal declaration by accused that he will not contend with the prosecuting authority under the charge.” (Italics supplied). Certain pleas were acceptable in criminal cases at common law and various pleas are acceptable under our present practice in this state. Chitty, Criminal Law (1847), Vol. 1, page 434; 22 C.J.S., Criminal Law, Section 414, page 635; Lee’s Criminal Trial in the Virginias, (2d Ed.), Vol. 1, Section 75, page 48 et seq. This state has no statute governing pleas in criminal cases, except as noted hereinafter, but “In such cases all pleas must be filed and disposed of as at common law.” The Criminal Trial in the Vir-ginias, (2d Ed), Vol. 1, Section 76, page 49. Rule IV, Rules of Practice for Trial Courts, 116 W. Va. lxi, provides: “The Court will require all dilatory pleas and *786demurrers to indictment to be filed promptly and hearings to be had thereon.” The pleas allowable at common law were characterized by a high degree of technicality in relation to felony charges. Chitty, Criminal Law (1847), Vol. 1, page 434 et seq.; State v. Beatty, 51 W. Va. 232, 41 S. E. 434.
Bearing in mind the place of the “plea” in our criminal procedure, we may get a better understanding of the import and intent of Code, 62-3-2, the following portion of which was treated so casually in the majority opinion: “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.” (Italics supplied). How was judgment entered at common law “in cases of misdemeanor”? The rule is stated in Chitty, Criminal Law, (1847), Vol. 1, page 435, as follows: “* * * and, therefore, in these cases, if a defendant plead in abatement or bar, and an issue in fact thereon be determined against him, he will have totally lost the benefit of a trial on the offence itself, and sentence may be pronounced, as though he had been regularly convicted. It seems, however, to be in the discretion of the court, to allow him still to plead not guilty, and this they will probably exercise, when the penalty incurred or conviction is very severe.” The same authority, immediately preceding the above quotation, states a different rule as to felonies as follows: “In case of felony, however, if the prisoner plead in bar or abatement, and it be adjudged against him, he will have liberty at the same time, or even afterwards, to plead over to the matter of the indictment, as if he had never relied upon any other ground of defence * * *.”
From the earliest days of the common law to the present the law has displayed a higher degree of solicitude and caution in relation to felonies than in relation to mis*787demeanors, as is evidenced by the quotations above from Chitty. Other instances, except as recently modified by statute, have related to the requirement that the accused plead in person rather than by counsel in felony cases, the presence of the accused from arraignment to final judgment, keeping the jury together, the number of jury strikes, discharge of the accused for failure to try, and the requirement that felony trials shall be only by presentment or indictment by a grand jury. “In a felony case, the trial judge should, if necessary, assume the initiative in order that the accused may receive a fair and impartial trial.” State v. Belcher, 121 W. Va. 170, 174, 2 S. E. 2d 257, 260. The same case, by a divided court, holds that specific objections to state instructions are not required in felony cases, as in misdemeanor cases, and by either side in civil cases. Other authorities might be cited for the traditional proposition that different rules are applied in felony cases.
In this background we can understand why the Legislature has provided by Code, 62-3-2, that in felony cases, as distinguished from misdemeanor cases, if the accused “refuse to plead or answer, and do not confess his guilt,” the court shall have the plea of not guilty entered for him in order that there may be vouchsafed to him his constitutional right to a trial by jury. The solicitude displayed by law for one charged with a felony is further evidenced by the repetition of similar language, not quoted by the majority, in Code, 61-11-15: “Modes of Conviction of Felony. — No person shall be convicted of felony, unless by his confession in court, or by his plea or demurrer, or by the verdict of a jury accepted and recorded by the court.” (Italics supplied). A plea of guilty is defined as: “A confession of guilt in open court.” Black’s Law Dictionary (4th Ed.) 1310. Comparing this definition with the words “confess his guilt” found in Code, 62-3-2, and the words “his confession in court” found in Code, 61-11-15, we glean what was obviously intended by the statutory language employed. If a plea of guilty means “a confession of guilt in open court”, then it follows logically that the words “confess his guilt” *788and the words “his confession in court” refer to a plea of guilty.
The majority opinion correctly points out that the plea of nolo contendere, literally interpreted, means “I do not contend.” Could it be maintained that this is what the Legislature had in mind when it so clearly provided that one accused of a felony may be convicted only by the verdict of a jury or by .his confession of guilt in open court? The majority opinion refers to the plea as an implied confession of guilt. Bearing in mind that the law requires one charged with a felony to be present personally and to enter his plea in person, rather than by counsel, could it be seriously urged that the Legislature, after all such precaution, would countenance “an implied confession of guilt?”
One thing quite clear from the entire law on the subject is that the plea of nolo contendere does not, in itself, amount to a conviction. Rather, when the accused by such a plea states that he does not contend against the charge, it is the court which convicts by treating such plea in limited situations as tantamount to a plea of guilty. The plea does not convict, certainly it does not confess guilt, but the court by its acts convicts the accused. Under no construction of such plea can it be said that the accused himself confesses his guilt. State v. Moss, 108 W. Va. 692, 152 S. E. 749.
It is true that in some other jurisdictions the plea of nolo contendere is accepted even in felony cases. I do not know to what extent courts of such jurisdictions are authorized or inhibited by statute, nor do I know to what extent such courts are sternly enjoined, as we are, by constitutional and statutory mandate to follow the common law except as altered by statute. Our decision should be based on the law of our own jurisdiction.
No doubt the Legislature in its wisdom meant to make it clear that one’s conviction of a felony should never be left to intendment, implication or uncertainty. This wisdom is fully vindicated by the fact that in apparently *789the first case ever to reach this Court involving a plea of nolo contendere to a felony indictment, the accused individual says that he did not understand the import and implication of such plea.
Frequently, courts are charged with engaging in “judicial legislation.”' With great deference to other members of the Court, I am convinced that the majority opinion not only engages in “judicial legislation” in the usual sense, but that it goes to the quite unusual extreme of repealing two specific statutory enactments. It is my considered judgment that, for almost a century, it has been accepted as hornbook law among the members of the legal profession that there are but two methods whereby one may be convicted of a felony in this state: by plea of guilty and by jury verdict. As a result of the majority opinion, an accused in a felony case now may enter the plea of nolo contendere, nowhere re-referred to in the entire West Virginia Code, never before appearing in a felony case among the reported decisions of this Court, but having its nebulous, uncertain existence on the yellow pages of ancient legal tomes. Having entered such a plea, thereby stating that he neither confesses nor denies, the court may convict him without the intervention of a jury of his peers.
I would hold that one accused of a felony in this State may be convicted only by the verdict of a jury or by his plea of guilty and that, in the absence of a conviction of the accused by either method, there can be no valid sentence.
For the reasons stated, I would award the writ, and discharge the prisoner from his confinement in the penitentiary on the ground that he has been sentenced in the absence of a conviction in a manner recognized by the law of this state.