McGRAW, JUSTICE:

In plea bargaining arrangements in the Circuit Court of Nicholas County, William John Cunningham, on June 30, 1975, entered a guilty plea to a charge of unarmed robbery, a lesser offense embraced in an indictment for the armed robbery of Orval Hoover on the ___ day of September, 1974. On the guilty plea, the trial court denied probation and sentenced the defendant to serve an indeterminate sentence of from five to eighteen years in the state penitentiary. W. Va. Code, 61-2-12. The trial court's two judgment orders of August 20, 1975, are before the Court for review on a writ of error and supersedeas granted May 17, 1976. By order of June 16, 1976, the trial court denied bail pending appeal.

Earlier, on November 12, 1974, two felony indictments were returned against defendant Cunningham, one charging the robbery of Orval Hoover and the other charging felonious assault on Orval Hoover, both involving the same episode occurring on the ___ day of September, 1974, covered in the armed robbery indictment to which the defendant entered a guilty plea on June 30, 1975. On the robbery indictment of November 12, 1974, defendant was tried to a jury on February 24 and 25, 1975, and found "guilty of armed robbery as charged in the within indictment." By order entered April 17, 1975, the trial court denied defendant's motion to set the jury verdict aside and to award him a new trial. In that order the court sentenced defendant to life imprisonment in the state penitentiary. Later, by order of May 8, 1975, the trial court reconsidered defendant's motion and granted him a new trial. On May 12, 1975, the State moved a nolle prosequi be entered on the November 12, 1974, robbery indictment. By order of May 16, 1975, the State's motion was granted and the cause was "ordered stricken from the docket."

On May 22, 1975, the grand jury for Nicholas County returned a new robbery indictment against defendant — the indictment on which he is now serving a sentence of from five to eighteen years on his guilty plea to a charge of unarmed robbery as a lesser offense embraced in the new robbery indictment.

While "armed robbery" and "unarmed robbery" are not appropriately descriptive of the two degrees of robbery embraced in the statute, W. Va. Code, 61-2-12, it will be helpful and permissible in this opinion to employ the terms from time to time in harmony with the record as presented for review. State ex rel. Vandal v. Adams, 145 W. Va. 566, 569, 115 S.E.2d 489 (1960).

In his brief, the defendant cites three errors of the trial court as bases for reversal of his conviction. He states:

"1. The trial court erred in dismissing the indictment for unarmed robbery against the defendant where the motion to dismiss was made by the State without first giving defendant notice and an opportunity to be heard.

"2. The trial court erred in overruling defendant's plea in bar made in defense to the armed robbery indictment.

"3. The trial court erred in accepting defendant's plea of guilty to the crime of unarmed robbery without first following certain procedures to determine if it was knowingly, voluntarily and intelligently made."

The first trial court error cited by defendant, dismissal of the robbery indictment without notice to the defendant or opportunity to be heard thereon, is without merit. By order of May 8, 1975, the trial court, on defendant's motion, had set the verdict aside and had granted a new trial on the indictment. Some days later the State moved that a nolle prosequi be entered on the indictment, the motion was sustained, and the trial court, by order of May 16, 1975, removed the cause from the docket. Defendant's brief cites W. Va. Code, 62-3-2, which provides that a "person indicted for felony shall be personally present during the trial therefor." He cites Local Court Rule No. 18, applicable in the Circuit Court of Nicholas County, requiring proposed orders to be submitted to opposing counsel before presentation to the court for entry. Several cases are cited affirming the statute law that the defendant in a felony case must be present during every stage of his trial. Here the trial had ended and the court had voided, on defendant's motion, the trial verdict and judgment. The decision to prosecute or not to prosecute is essentially an executive decision. At common law approval of the court was not required for dismissal of an indictment. Rule 48, Federal Rules of Criminal Procedure, as amended, now allows dismissal with leave of court. The leave of court requirement may be "intended to prevent harassment of a defendant by charging, dismissing and without placing a defendant in jeopardy." 3 Wright, Federal Practice and Procedure, § 812 (1969). For many years the practice in West Virginia has required the consent of the court for dismissal of indictments. Denham v. Robinson, 72 W. Va. 243, 77 S.E. 970 (1913). In his brief, the defendant reasons that when the court dismissed the indictment on the State's motion without notice to the defendant or an opportunity to be heard thereon, the " ex parte proceeding was in violation of defendant's right of due process of law and in violation of W. Va. Code, 62-3-2." In State v. Burke, 130 W. Va. 64, 72, 42 S.E.2d 544 (1947), the Court stated:

". . . When a defendant has been convicted and a new trial has been granted him, the prosecution may, with the consent of the court, enter a nolle prosequi without prejudice to a new indictment of information. . . ."

We adhere to this ruling and find no error in the trial court's dismissal of the indictment.

Defendant further contends that "once the State moved to nolle prosequi defendant's indictment charging him with unarmed robbery, she was barred from further prosecuting defendant for the crime of armed robbery." Defendant's position is based on two basic propositions — that further prosecution on the new indictment would violate double jeopardy and due process of law provisions of the constitutions of the United States and of West Virginia. Benton v. Maryland, 395 U.S. 784 (1969).

Among cases cited by defendant in support of his double jeopardy arguments in State v. Holland, 149 W. Va. 731, 143 S.E.2d (1965). The second point of the syllabus of that decision holds"

"Where a conviction and sentence are set aside and held to be void by motion of the defendant in the trial court, by an appeal, or by habeas corpus proceedings, double jeopardy is not applicable because in each instance it is waived and there is no inhibition to another trial for the same offense."

He also cites State v. Burke, supra, the syllabus point of which reads:

"When an accused has been tried and convicted by a justice of the peace on a valid warrant and the judgment of conviction is vacated and annulled by an appeal taken by him to the criminal court of the county, and while such appeal is pending and before it is dismissed, he is indicted for the same offense and is tried and convicted in that court, the provision of the Constitution of this State, Article III, Section 5, that no person, in any criminal case, shall be twice put in jeopardy of life or liberty for the same offense does not apply; and in such case the accused may not plead his conviction on the warrant in bar of the prosecution for the same offense in the trial on the indictment."

Defendant reasons that the dismissed indictment was for unarmed robbery and the new indictment is for armed robbery, a different offense. As above noted, the West Virginia statute on robbery, W. Va. Code, 61-2-12, does not delineate degrees of the crime on the basis of armed and unarmed robbery. The first sentence of the statute is one degree of robbery, with a sentence of from ten years to life imprisonment, and the second sentence related to another degree of the crime, with a sentence of from five to eighteen years. The first paragraph of the statute, embracing the two sentences, follows:

"If any person commit, or attempt to commit, robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than ten years. If any person commit, or attempt to commit, a robbery in any other mode or by any other means, except as provided for in the succeeding paragraph of this section, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than five nor more than eighteen years."

The statutory form of the robbery indictment, W. Va. Code, 62-9-6, refers to armed situations, but does not define degrees of robbery. The statutory form is as follows:

"An indictment for robbery shall be sufficient if it be in form, tenor or effect as follows (after following the form in section one [§ 62-9-1]:

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."

The dismissed indictment, returned November 12, 1974, considered by defendant to be for unarmed robbery, reads as follows:

STATE OF WEST VIRGINIA, COUNTY OF NICHOLAS, TO-WIT: In the Circuit Court Thereof the Grand Jurors of the State of West Virginia, in and for the body of the County of Nicholas, upon their oaths present that William John Cunningham on the ___ day of September ___, 1974, and before the finding of this indictment in the said County of Nicholas, in and upon one Orval Hoover an assault did feloniously make, and then the said Orval Hoover did then and there feloniously put in bodily fear and fifteen dollars ($15.00) in United States currency, all the property of the said Orval Hoover, and lawfully in his control and custody, from the person of the said Orval Hoover, and against his will, then and there feloniously and violently did steal, take and carry away against the peace and dignity of the State. Found upon the testimony of Tpr. O. S. Adkins, sworn in open Court and sent before the Grand Jury this 12th day of November, 1974. /s/ J. M. Tully Prosecuting Attorney

The new indictment, returned May 2, 1975, is in the following language:

"STATE OF WEST VIRGINIA, COUNTY OF NICHOLAS, TO-WIT: In the Circuit Court Thereof The Grand Jurors of the State of West Virginia, in and for the body of the County of Nicholas, upon their oaths present that William John Cunningham on the ___ day of September, 1974, and before the finding in this indictment in the said County of Nicholas, in and upon one Orval Hoover an assault did unlawfully and feloniously make, and him the said Orval Hoover, unlawfully and feloniously did strike, beat and do violence to his person, and him, the said Orval Hoover, then and there feloniously put in bodily fear and fifteen dollars ($15.00) in United States currency, all the property of the said Orval Hoover, and lawfully in his control and custody, from the person of the said Orval Hoover, and against his will, then and there unlawfully, feloniously and violently did steal, take and carry away, against the peace and dignity of the State. Found upon the testimony of Tpr. O. S. Adkins, sworn in open Court and sent before the Grand Jury this 22nd day of May, 1975. /s/ J. M. Tully Prosecuting Attorney

The interpretation and application of the robbery statute were considered by the Court in State ex rel. Vascovich v. Skeen, 138 W. Va. 417, 76 S.E.2d 283 (1953), prior to the 1961 amendment to the first paragraph of the statute which added words at the end of the second sentence limiting the imprisonment to not more than eighteen years. Otherwise the language of the statute is the same as interpreted and applied in State ex rel. Vascovich v. Skeen, supra. In that case syllabus, point three holds:

"Under Section 12, Article 2, Chapter 28, Acts of the Legislature, 1939, amending and reenacting Code, 61-2-12, an indictment which charges that the accused in and upon a named person `an assault did feloniously make and her, [the named person] did then and there feloniously put in bodily fear, and . . ., then and there feloniously and violently did attempt to steal, take and carry away', certain personal property described in the indictment, not belonging to or in the custody of any bank, is an indictment based on the provision of the first sentence of Section 12, and effectively charges the accused with the offense of attempting to commit robbery, the penalty for which is confinement in the penitentiary for not less than ten years."

In consideration of the language of the robbery statute, the statutory form of the robbery indictment, and the Court's reasoned analysis and conclusion in the Vascovich case, supra, we hold that the language of the dismissed indictment in this case charged the robbery crime in the first sentence of the statute, W. Va. Code, 61-2-12, although the charging is somewhat inartfully accomplished. Young v. Boles, 343 F.2d 136 (4th Cir. 1965). It follows, therefore, that the trial court's instruction that one of the jury's possible verdicts was to find the accused guilty of armed robbery was not in error and that the jury's verdict finding the defendant "guilty of armed robbery as charged in the within indictment" was consistent with the indictment and instructions of the court. On that verdict the court imposed a life sentence but, on defendant's motion, the verdict was set aside and a new trial was awarded. Later, when the November 12, 1974, indictment was dismissed and a new indictment was returned on May 22, 1975, charging the same offense with the same penalty provisions, but in somewhat different language, defendant was not threatened by double jeopardy or due process of law violations. United States v. Ball, 163 U.S. 662 (1896). The new indictment charged the same offense and, in its application and through plea bargaining, defendant's plea of guilty to the lesser offense, under the second sentence of the robbery statute, was accepted and a sentence of from five to eighteen years was imposed. The trial court's sentencing order of August 20, 1975, referred to the crime as unarmed robbery, imposed the sentence, and allowed time credit to the defendant for the 150 days he had been held in jail pending trial and disposition of his case.

Defendant relies on Blackledge v. Perry, 417 U.S. 21 (1974), as basis for his position that he had been denied due process of law. He reasons he sought an appeal of his conviction on an unarmed robbery indictment and, when his conviction on that indictment was vacated on his motion, he was penalized by the State's return of an armed robbery indictment, a greater offense. Our foregoing analyses and findings have resulted in the conclusion that the offense charged in the first and second indictment are the same. In the Perry case, supra, the defendant had been prosecuted on a misdemeanor charge. While his appeal thereon was pending without determination, he was indicted for a felony on the same factual situation and, on his guilty plea, was sentenced to serve five to seven years in prison. The teachings of the Perry case, on facts different from those in the present case, relate greatly to due process rights in an atmosphere involving possible retaliation and vindictiveness on the part of the prosecution. In the present case, the Court finds that the criminal offenses in the two indictments are the same but charged in somewhat different language. The facts disclose that the defendant's life sentence under the earlier indictment has been vacated and that defendant has been allowed to enter a guilty plea to a lesser offense under the second indictment on which a sentence of from five to eighteen years, with credit for time held in jail, has been imposed. We find no denial of due process of law in the proceedings.

In his brief on this appeal, counsel for defendant states that "defendant's plea of guilty to the crime of unarmed robbery may not have been knowingly, voluntarily, and intelligently made". He argues that the trial court's procedures on accepting the guilty plea do not measure up to the standards set forth in Call v. McKenzie, ___ W. Va. ___, 220 S.E.2d 665 (1975). The record discloses that defendant's plea was entered June 30, 1975. The Call opinion was announced December 16, 1975. The trial court did not have the benefit of the teachings of this Court's opinion. While the Court did not make the teachings mandatory, they should be sedulously followed, particularly in the absence of a state rule, comparable to Rule II, Federal Rules of Criminal Procedure, detailing the procedures required in accepting a guilty plea. However, in the present case, the seven pages of the record detailing the advices and inquiries of the trial court to defendant relating to his guilty plea are found to satisfy the requirements of the Call opinion and of Boykin v. Alabama, 395 U.S. 238 (1969), and to satisfy this Court that the plea of guilty was knowingly, voluntarily and intelligently made.

Upon review and consideration of the record, together with the briefs and arguments of counsel and the relevant and pertinent principles of law involved in and controlling a determination of this cause, we find no error in the trial court proceedings and accordingly affirm the judgment orders of the Circuit Court of Nicholas County entered in this Case on August 20, 1975.

Affirmed.