MacKall v. State

Orth, J., delivered the opinion of the Court. Murphy, C. J., concurs in the result. On 23 September 1976 the Grand Jurors for Calvert County returned a true bill against Kenneth Mackall presenting that ¹⁰² on 17 April 1976 he did assault Charles Lester Rawlings with intent to murder (1st count); that he did assault Rawlings with intent to maim (2nd count); that he did assault and beat Rawlings (3rd count); and that he “did unlawfully wear and carry concealed upon and about his person a certain dangerous and deadly weapon, to wit: a knife, and did wear and carry said weapon openly with intent and purpose of injuring another person in an unlawful manner” (4th count). At a court trial in the Circuit Court for Calvert County, a motion for judgment of acquittal was granted as to the 1st count at the close of all the evidence.

Mackall was found guilty under the 2nd, 3rd and 4th counts. He was sentenced to 10 years on the 2nd count, to 20 years on the 3rd count, concurrent with the sentence on the 2nd count, and to 3 years on the 4th count, consecutive to the other sentences. On appeal, the Court of Special Appeals affirmed the judgments on the 2nd and 4th counts and “reversed” the judgment on the 3rd count, finding that it merged with the judgment on the 2nd count. Mackall v. State, No. 278, September Term, 1977, decided 28 October 1977, unreported.

We granted Mackall’s petition for a writ of certiorari. It went only to the judgment on the 4th count, presenting the sole question: “Did the Court of Special Appeals err in holding that petitioner had the burden of proving that the knife he carried was not a penknife, where, by virtue of the definitional clause of the statute, it is not a crime to carry a penknife?” I The circumstances leading to the indictment and convictions are presented to us by an agreed statement of facts pursuant to Maryland Rule 828 g. We quote from Mackall’s brief: “On April 17, 1976, a series of ‘barroom brawls’ took place on the parking lot of Duke’s Tavern in Calvert County. [Mackall] and at least three other persons were involved and a small crowd of witnesses watched. Between skirmishes, one of the ¹⁰³ witnesses removed a knife from her purse and gave it to [Mackall], who shortly thereafter used it to cut one of the participants in the earlier scuffle.

Although [Rawlings], [Mackall] and several eye witnesses testified, the State failed to adduce any description of the knife involved.” The State, with Mackall’s consent, supplemented the statement in its brief with portions of the testimony of the investigating officer, Trooper Michael Snukis of the Maryland State Police. Arriving at the crime scene, Snukis saw three injured persons. “[Rawlings] was lying on a girney. He had a sharp instrument wound, a clean-cut wound, approximately four inches across the back of his neck fairly deep. Also he had a sharp instrument wound on both arms approximately this area, and also on his left lower back area around where the kidneys are.

The other person was one Lucille Wallace. She sustained — she was lying there with a cut on her left arm which required stitches and was also a sharp instrument wound. Another person was found. Her name was Betty Lou Johnson.

She sustained a laceration on the nose where the tip of the nose was removed.” 1 II The issue for decision concerns Maryland Code (1957,1976 Repl. Vol., 1977 Cum. Supp.) Art. 27, § 36. 2 Subsection (a) of ¹⁰⁴ that statute provides that every person who shall wear or carry certain designated weapons, “or any other dangerous or deadly weapon of any kind, whatsoever (penknives without switchblade and handguns, excepted),” 3 either “concealed upon or about his person” or “openly with the intent or purpose of injuring any person in any unlawful manner,” shall be guilty of a misdemeanor. The punishment upon conviction of either of these acts is a fine of not more than $1,000 or imprisonment for not more than three years.

However, “if it shall appear from the evidence that such weapon was carried, concealed as aforesaid or openly, with the deliberate purpose of injuring the person or destroying the life of another, the court shall impose the highest sentence of imprisonment hereinbefore prescribed.” 4 § 36 (a). Subsection (c) prescribes: “Nothing in this section shall be construed to prevent the carrying of any of the weapons ¹⁰⁵ mentioned in [subsection (a)] of this section by an officer of this State, or of any county or city therein, who is entitled or required to carry such weapon as part of his official equipment, or by any conservator of the peace, who is entitled or required to carry such weapon as part of his official equipment, or by any officer or conservator of the peace of some other state temporarily sojourning in this State, or by any special agent of a railway or by any person to whom a permit to carry a concealed weapon has been issued under § 36E of this article, or by any person who shall carry such weapon as a reasonable precaution against apprehended danger, but the tribunal before which any case arising under the provisions of this section may be tried, shall have the right to judge of the reasonableness of the carrying of any such weapon and the proper occasion therefor, under the evidence in the case.” 5 Subsection (a) also provides that in certain counties “it shall also be unlawful and a misdemeanor, punishable as above set forth, for any person under eighteen years of age to carry any dangerous or deadly weapon, other than a handgun, between one hour after sunset and one hour before sunrise, ¹⁰⁶ whether concealed or not, except while on a bona fide hunting trip, or except while engaged in or on the way to or returning from a bona fide trap shoot, sport shooting event, or any organized civic or military activity.” Only handguns are excepted: “penknives without switchblade” are not included in the exception. 6 The legislative scheme is manifest from the language and structure of the statute. Under subsection (a): 1) Generally, it is a misdemeanor for any person to carry any dangerous or deadly weapon: a) concealed, or b) openly with the intent or purpose of injuring any person in any unlawful manner. 2) The following articles are dangerous and deadly weapons perse: a) dirk knives; b) bowie knives; c) switchblade knives; d) sandclubs; e) metal knuckles; f) razors; g) nunchakus. 3) The following articles, even though dangerous and deadly weapons, are not within the ambit of the statute: a) penknives without switchblade; b) handguns. 4) In certain counties, it is a misdemeanor for any person under 18 years of age to carry any dangerous or deadly weapon at night, whether-concealed or openly, unless such person is ¹⁰⁷ engaged in, or on the way to or from, certain activities: a) handguns, being expressly excepted, are not within the ambit of this provision. b) penknives without switchblade, not being excepted, are within the ambit of this provision. 5) The punishment for carrying a dangerous or deadly weapon concealed, or for carrying it openly with the intent or purpose of injuring any person in any unlawful manner shall be a fine of not more than $1,000 or imprisonment for not more than 3 years; but a) if it appears from the evidence that such weapon was carried, either concealed or openly, with deliberate purpose of injuring the person or destroying the life of another, 3 years imprisonment is mandated. Under subsection (c): (1) The statute does not apply to certain persons a) entitled or required to carry a proscribed weapon as a part of their official equipment; or b) who have been issued a permit to carry such a weapon; or c) who shall carry such weapon as a reasonable precaution against apprehended danger.

(i) the tribunal trying the case has the right to judge the reasonableness of the carrying of such weapon and the proper occasion therefor. 7 ¹⁰⁸ Ill Mackall argues: “In a prosecution for carrying a dangerous weapon as proscribed by Maryland Code, Art. 27, § 36 (a), the State bears the burden of proving that the weapon is one prohibited by the statute by negating the exception for penknives without switchblades because that exception is ‘so incorporated with the definition or description of the offense as to constitute a part thereof.’ ” He asserts: “[I]f the State had the burden to prove that the weapon was not a penknife without switchblade, the evidence is insufficient; if [Mackall] had the burden to prove that the weapon was a penknife without switchblade, the evidence is sufficient.” We agree that this is the heart of the issue for decision. Mackall does not contest that he assaulted Rawlings with intent to maim. And he concedes that the weapon with which the assault was committed was a knife which he carried openly with the intent and purpose of injuring Rawlings. Furthermore, it is clear from the nature of the wounds inflicted that the knife used, although not shown to be one of those listed in the statute so as to be a dangerous or deadly weapon per se, was, in the circumstances, a dangerous or deadly weapon.

See Bennett and Flynn v. State, 237 Md. 212, 214-216 , 205 A. 2d 393 (1964). Even so, Mackall claims, this is not enough to prove a violation of § 36 (a) because it was not established that the knife was other than a knife without a switchblade. 8 This was the crux of Mackall’s argument on the point before the Court of Special Appeals. We agree that had the evidence shown that the knife here was a penknife ¹⁰⁹ without switchblade, the carrying of it in Calvert County, concealed, or openly with intent to injure, no matter how it was used, would not constitute a violation of § 36 anymore than the carrying of a handgun, beyond question a dangerous or deadly weapon, would have been a violation. 9 The question boils down to whether the State had to establish, beyond a reasonable doubt, that the knife Mackall was found to have carried with the deliberate purpose of injuring Rawlings was a dirk knife or a bowie knife or a switchblade knife or any other dangerous or deadly weapon other than a penknife without switchblade. The Court of Special Appeals expressed Mackall’s contention thus: “[Sjince penknives without switchblades are excepted from subsection (a), and the carrying of them is therefore noncriminal, it was incumbent upon the State to prove, beyond a reasonable doubt, that the knife used by [Mackall] was one that is included within the statute, i.e., that it was something other than a penknife without a switchblade.” It believed that a similar contention was made and rejected by this Court in Spurrier v. State, 229 Md. 110 , 182 A. 2d 358 (1962) (per curiam).

Spurrier concerned the provisions of subsection (b), now subsection (c) and hereinafter referred to as subsection (c), providing that § 36 shall not be construed to apply to certain persons. Spurrier answered the contention that the State had the burden of proving that the defendant was not one of the exempted persons by applying the rule that “when the facts are peculiarly within the knowledge of the defendant ... the burden is on him to prove that he comes within one or more of the exceptions.” Id. at 112 . The Court of Special Appeals found “no distinction between the exception for penknives stated in subsection (a) and the exceptions for certain peace officers contained in subsection ¹¹⁰ (c).” It found the rule stated in Spurrier as to the facts within the knowledge of the defendant to be “equally apposite here.” It said: “Section 36 (a) proscribes the carrying of not only a variety of knives, but also ‘any other dangerous or deadly weapon of any kind, whatsoever’, which, generically, a penknife may well be. The exception for penknives, therefore, is not an essential element of the offense, but rather an exception to what otherwise would be criminal, in the same manner as the exemptions in subsection (c).” We do not agree.

We do not believe that the holdings of Spurrier regarding the exceptions in subsection (c) are apposite to weapon exceptions in subsection (a). In Spurrier , before disposing of the contention that the State had the burden of proving that the defendant was not within the exceptions prescribed by subsection (c), we found that it was clear that none of the exceptions prescribed by subsection (c) was “a constituent element of the offense charged in the indictment. . . .” Id. at 111 . 10 We made this determination primarily under the authority of Howes v. State, 141 Md. 532 , 119 A. 297 (1922). The teachings contained in the comprehensive discussion in Howes may be fairly summarized thus: when a penal act contains an exception so incorporated with the substance of the clause defining the offense as to constitute a material part of the description of the acts, omission or other ingredients which constitute the offense, the burden is on the State to prove beyond a reasonable doubt, that the offense charged is not within the exception. In other words, when an exception is descriptive of the offense or so incorporated in the clause creating it as to make the exception a part of the offense, the State must negate the exception to prove its case.

But, when an exception is not descriptive of the offense or so incorporated in the clause creating it as to make the exception a part of the ¹¹¹ offense, the exception must be interposed by the accused as an affirmative defense. Howes at 535-548 . Of course, the burden of proving the corpus delicti and criminal agency is always on the State, and once the exception is interposed by the defendant, the burden remains on the State to show that it is not applicable. The exceptions prescribed in subsection (c), a subsection subsequent to the enacting clause of the offense proscribed, are not, as Spurrier found, so incorporated with the definition or description of the offense as to constitute a part thereof.

Thus, it was not necessary for the State to prove, as part of its case in chief, that Mackall was without the class of persons excepted. On the other hand, it is manifest that the weapons exception in subsection (a), set out in the enacting clause defining the offense, is an essential ingredient of the offense. The offense