Howell v. State

Murphy, C. J. dissenting: The Court holds that a tear gas pistol is not a “handgun” within the meaning of the statute because it is not a “firearm” capable of emitting a missile propelled by gunpowder “or a similar explosive.” I respectfully dissent. At trial a gun expert testified that the “tear gas” was propelled by an extremely violent explosive and was itself actually a large quantity of very fine particles and not a gas at all. He referred to the particles as projectiles. Relying on this testimony, the Court of Special Appeals held that “the propellant was an explosive charge” and that “what it propelled were projectiles or missiles.” Howell and Kaschenbach v. State, 29 Md. App. 646, 654 , 350 A. 2d 145, ³⁹⁷ 150 (1976).

The court added that “the size of the projectile is of no moment,” and concluded: “[A] weapon, in the form of a pistol which will, or which is designed to, or which may readily be converted to expel, by an explosive force, tear gas in the form of finely divided solids or particles, is a ‘handgun’ within the meaning of art. 27, § § 36B-36F.” 29 Md. App. at 655 , 350 A. 2d at 151 . The majority of this Court, however, has limited the requisite propellant to gunpowder or a similar explosive and has determined that tear gas “is not a missile within the natural and ordinary signification of the term.” 278