*1 LOWELL HOWELL, DOUGLAS JR. and LEONARD KASCHENBACH,
FRANCIS JR. STATE v.
OF MARYLAND 401, September Term, [No. 1975.] January 5,
Decided *2 J., and Morton and argued before C. The cause was Orth, Lowe, JJ. for Defender, Assigned Faby, Public
Raymond M. Howell, Fabian, with Douglas Jr. James J. appellant Lowell brief, appellant for on the whom John W. Pfeifer Kasehenbaeh, Jr. Francis Leonard General, with Attorney Robinette, H. Assistant
Gilbert General, Attorney A. Burch, whom were B. Sandra Francis Attorney County, and O’Connor, Baltimore State’s for Attorney Townsend, William S. Assistant State’s for brief, appellee. on the County, Baltimore J., opinion J., of the Court. delivered C. Lowe, Orth, 659 page opinion at dissenting dissents and filed a infra. appeal is the tear in this whether primary issue contemplation of is a within the in this case
Code, 27, (d), proscribing the unlawful use art. 36B§ We hold that handgun in of certain crimes. the commission is. OF CASE STATEMENT Francis Leonard Douglas Howell, Jr. Lowell 648
Kaschenbach, Jr., jointly at in the Circuit tried a bench trial County February 27 were for Baltimore on Court Harry feloniously assaulting Clough Merlin convicted him, unlawfully using handgun with intent to rob and of felony.1 commission of a Each accused was sentenced to March, years.2 On Kaschenbach filed a motion for a five 3 appeal. April, trial. On 26 March Howell noted an On new trial was heard and denied. Kaschenbach’s motion for a new By July 1975, April appeal. he noted an our order of 10 On State, pursuant Maryland upon motion of the Rule (3), appeal 1035 b we dismissed the noted Kaschenbach February goes judgment . “insofar as it to the . . entered on 27, 1975, having ... been with the lower court filed prescribed by Maryland . . We within the time Rule 1012. .” goes appeal, Kaschenbach’s as it further ordered “insofar trial, be, hereby, the denial of a motion for a new and is *3 propriety limited to the issue of the of the trial court in its denial of that motion.”
THE EVIDENCE trial, Clough guilt stage testified that while At the Beltway gave a When driving he two hitchhikers ride. on the pulled gun guy “the in the front stopped let them out he to any my head, out, up and asked me if I had and stuck it said, get got I money, I him I Then he out. So and told didn’t. “ .22, gun: was a it looked like a described the out.” He [i]t was, just anyway. It I think it was like black to me ... .22 he was asked how color.” On cross-examination or darkish of the 1. convictions were under the second and third counts The guilty jointly charging not them. The court found both accused indictment Clough merges charging into on the first count the second count.” The State “abandoned” the larceny the assault of “because that count, charging fourth according Clough’s the use of automobile. This is guilt stage penalty transcript proceedings the trial. At the at the observed, stage “The abandons counts one and four.” We the court State February entry docket under date of 27 1975 reads: “State note that abandons counts 4.” Defendants, judge imposed on count sentence thus: “As to both The Correction, two, years Department suspended in the number five [three], years Department indefinitely. Correction; five As to count number concurrently.” to run The court at first referred to the sentences shortly count three. count four but thereafter indicated it meant “Well, He said: was a .22. that it conclusion at the he arrived corner of it out of the .22s, when I saw seen a lot of I’d It much to me. ... pretty it looked like my eye, what that’s Shortly blue.” color, or a dark like a blackish dark was a offense, Howell and commission after E. by Corporal Franklin foot, Kaschenbach, were seen on received a County Pugh had Police. Pugh of the Baltimore radio, and the police his Clough over report incident felons. He description of the answered men he saw small I this time observed men. “At accosted the two subjects, two ground behind the handgun laying on the stopped I them beneath, And when directly them. . . . behind subjects I was directly the two I behind when looked down laying ground.” of, on the standing was in front 1969 .22 caliber weapon: “It was a model Pugh described plastic grips.” Italy, brown gas, black with made his hooked to belt brown holster” Kaschenbach had “a small and holster were his back.” “right in the small of testified in objection. Howell in evidence without received that he knew he said On cross-examination his own defense. gas gun for self “this tear Kaschenbach carried I it, the first time me about but that’s protection. ... He told He admitted it, night.” also testified. Kaschenbach seen my protection, carry gas gun because a tear that he “did guys, on record at year jumped six and it’s last I was gun, Station, purchased I which and so Essex Police away enough get harmful, give time to me fatal but it, permit for “. . . didn’t He did not have a from attack.” actually illegal.” one; I didn’t know if it think I needed *4 trial, motion for a new hearing on Kaschenbach’s At the Honor, Attorney told the court: “Your Assistant State’s the mutually expert acceptable the services of a we have secured T. H. person Howard Donahue.” Howard of Mr. Specialties, was Donahue, owner of Donahue’s Gun gave qualifications. his The State Kaschenbach and called expert qualifications as an stipulated “as to Mr. Donahue’s generically.” was shown the guns field of He witness gun he had Donahue said that admitted evidence. Upon questioning ago shop. a examined it short time his testified, it, defense counsel he as we understand that the readily “by normal, weapon simple could not be converted pistol a which tools” into conventional would fire bullets. very drilling was baffle which made difficult There a out open completely. cross-examination, of the barrel to it On however, explosive he discussed mechanism used to discharge weapon. copper caps. He was shown two He gas projectile.” identified each as “a tear One had been fired. apparent by seeing relatively fired “It’s that one has been heavy imprint firing pin place on the rear of the and place, slightly also the swollen nature of the which would explosion place According took indicate an within.” Donahue, weapon concerned, “As far as the the name tear explained: large gas gas He “Tear is a rather is misnomer.” very actually gas quantity particles, fine it’s not at all. it, firing expel projectiles, would these which are And to fire very irritating eyes. My opinion highly to the . . . is that if somebody’s face, pointed at whether were is, gas, proximity, at that two contained blank or tear close less, extremely to an feet or it would be destructive eyes.” individual’s The witness was asked: “ examined, weapon you the case of the have [I]n moment, your this you have in hand at that I casings, which relating that examine, I you do understand asked have also correctly your opinion propellant that it is that the infinitely gas, for the tear small tear projectile you to, referred is some form of explosive?” replied:
Donahue cyanate, “Well, chemically you mercury have oxide mercury, stiffenates, or one that or fulminate compound, explosive; which is a nitrate and it’s they extremely explosives.” fact, violent are both inquired: mercury, “The fulminate of or whatever court correct, is, explosive propellant, the other term is the mean, explosion cap causes whatever else is sir? *5 propelled?” to be Donahue said that was correct. The court pursued “yes” the matter. Donahue answered to the question, “Now, explosive causes whatever is in there to propelled?” transcript be reads: there, Now, explosive
“. . . . which is in not the itself, cap has, but whatever content the when the explosion place, propelled, takes and that is is that destroyed contact, you upon do know? you
THE WITNESS: Do mean the chemical preparation?
THE COURT: Yes. destroyed
THE WITNESS: Is that on contact with the individual it strikes? Yes, sir, may
THE COURT: or strike. whatever possibly go THE WITNESS: It will into a solution. But that I do know. I is a know that the highly destroyed property; irritant it’s whether Inot do not know.”
THE LAW Assembly, The General concerned with the increase of violence, by enacting 1972, crimes of took action ch. Acts 36B-36F, adding “Handguns”, new sections entitled to art. 27 doing findings of the Code. so it set out these (a) policy”: in declarations 36B as a “Declaration of “(i) has, years, alarming There in recent been an in
increase the number of violent crimes perpetrated Maryland, high percentage and a handguns; those crimes involve the use of (ii) The result has been a substantial increase persons injured number of killed or which traceable, large part, carrying handguns to the public ways by on the persons streets and inclined activity; to use them criminal
(iii) currently The laws in force have not been curbing frequent effective more use handguns crime; in perpetrating *6 wearing, carrying, regulations on the
(iv) Further handguns necessary to transporting of are and tranquility State and peace preserve the and protect rights and liberties of citizens.” (d) provided: of 36B Subsection § use in the “Any person who shall a felony any any or of violence of crime commission article,!3] guilty as defined 441 of this shall be § separate and on conviction there misdemeanor any imposed shall, in other sentence of addition felony said or by virtue of commission of Maryland misdemeanor, Di sentenced to the be for a term of not less than vision of Correction years, and it fifteen more than five nor impose mandatory upon no less than the court to years.” five of minimum sentence (a) “handguns”: Section 36F defined subheading ‘handgun’ “The term as used this shall any pistol, revolver, other include or firearm capable person, including on being of concealed shotgun and a rifle a short-barreled short-barreled below, except it as these terms are defined shall not shotgun, antique rifle or firearm include a as those terms are defined below.” App. 127, (1975),we State, In Md. 135 found it to v. Todd legislative “Handguns” “to be intent statute weapon simulating appearance a any hand of include pistol discharging capable revolver a missile 441-448 are the title of art. under “Pistols”. Section 441 Sections (e) By means term ‘crime violence’ subsection “The common-law definitions. concerns statutory including arson; all abduction; burglary, offenses; housebreaking; kidnapping; escape; burglary storehouse forms manslaughter, murder; mayhem; involuntary manslaughter; excepting any attempt robbery; sodomy; aforesaid rape; offenses; commit or an .and punishable any other offense intent to commit or assault with year.” Howell and imprisonment of violence one The crime for more than Code, committing felony. 27, 12. art. was a were accused of Kaschenbach any propulsion.” legislative method of We believed that use “handgun” of the word rather than the more restrictive word “firearm” a matter of Id., deliberate choice. at 138. reaching finding in Todd, we looked to the American Heritage Dictionary English Language (1973) for the following definitions: — consisting essentially a metal weapon A
Gun projectile is at
tube from which a fired high velocity trajectory. A into a flat de- projectile. vice that shoots — used with one A firearm that can be Handgun
hand; pistol. — missile, Any capable firing Firearm
especially pistol using or rifle *7 explosive charge propellant. as a — Any object weapon fired, or that Missile
thrown, dropped projected or otherwise target; projectile. at a dictionary “pistol” The same states that a is “A firearm designed to be held and fired with one hand.” It defines “projectile” fired, thrown, as “A projected or otherwise object, bullet, having such as a capacity no for self- propulsion.” Webster’s Third New International Diction ary English Language, Unabridged (1968) gives meaning projectile body as a projected by “a continuing external force and motion its own inertia.” It particles illustrates a use of the word: “subatomic used as projectiles smashing.” in atom “specific” It sets out as a definition, firearm, cannon, “a missile for a or other weapon.” weapon It defines missile as object “a or other projected (as stone, thrown or bullet, artillery shell).” or “Weapon” judicially has Maryland. been defined In 237 State, (1964), Bennett v. Md. 214-215 the Court of Appeals adopted language of 3 Wharton’s Criminal Law (Anderson’s ed., 1957), 961, p. 111, stating Procedure weapon that a generally “is anything defined as used or designed destroying, defeating, to be used in injuring or an
654
enemy, or as an instrument of offensive or defensive combat.”
DECISION In Todd, weapon propelled it was manifest that projectile, and the issue turned on the nature of the propellant.4 In judice, the case it is sub manifest that the propellant explosive charge, was an and the issue turns on weapon propelled projectile. whether the The evidence legally show, light adduced was sufficient out, weapon propelled definitions above set here projectiles, expert and the gas”, witness so testified. “Tear explained, large quantity very he “is a rather fine particles, actually it’s it, firing at all. And to fire expel very would these projectiles, highly which are irritating eyes.” (emphasis added). to the We think that the projectile size of the is of no moment. big Whether it be as as artillery an shell or as particle, small as a subatomic it is projectile. still a question plain.
That the was a That it may equally clear; be carried and used in the hand is so it handgun. projected object by was a It means of an force, explosive appearance and it had the of a .22 caliber pistol. propelled projectiles We have found what it were capable inflicting injury; missiles. It was “it serious be”, expert said, “extremely would to an destructive eyes.” short, individual’s characteristics were such requirements to meet all the within the contemplation “handgun” statute. We hold that its use *8 in felony the commission aof or a crime of violence as by 27, proscribed by defined art. 441 was a misdemeanor § § (d). 36B Todd, 135, weapon “was, short, handgun in at that the in 4. We said legislative purpose
unless it was the limited ejected by and intent to have the statute weapons in its effect to those hand from which a bullet or missile is explosive charge.” an gas compound may gas liquid droplets A tear 5. also be the form of or finely Dictionary well as as divided solids. McGraw-Hill of Scientific and (1974). Technical Terms Training Operations Manual, Maryland Training 6. See and Police Commission, (1972), at IV-24 and 25.
655 holding weapon, is a narrow one. It is that a Our will, pistol7 designed to, or form of a which which is or may by readily explosive expel, which be converted to force, finely tear form of divided solids or meaning “handgun” 27, of particles, is a within the art. §§ 36B-36F.8 having pistol revolving cylinder A7. “revolver” is a with several
cartridge Language. Dictionary Heritage English chambers. American of The long Assembly past Maryland For 8. of has been General concerned dangerous deadly weapons the use of with In 1886 it created the and of the commission crimes. wearing carrying weapon upon of or crime concealed wearing person carrying openly or about the or or with the intent of any person unlawfully. Although injuring 1886, frequently Acts ch. 375. amended, the 1886 Act substance of remained the same. The Act as 27, penalty amended the committed with a codified as art. now In codified as art. 36. 1927 a more severe § robbery felony common law offense of was authorized when that dangerous deadly weapon. 1927, 457, and ch. Acts now 27, Legislature In 1933 the enacted the Uniform § 1933, 550, 27, 372-383, Machine Gun Act. ch. Acts codified as art. §§ possession gun included the declaration that or use of a machine perpetration perpetration felony, or of a crime of violence was a attempted 373, possession aggressive and the or use of a machine for offensive or § purpose registered, transfer and penitentiary misdemeanor, guns was a 374. Machine must be § General'Assembly regulated sale, 378-379. In 1941 the §§ 622; possession pistols 1941, Code, and ch. revolvers. Acts 27, (c) proscribed possession pistol art. 441-448. Section 445 §§ or by any person violence, revolver has been “who convicted of a crime of or of any provisions fugitive justice of this subtitle or who is a from or a[n] drunkard, narcotics, habitual or to addicted or an habitual user of amphetamines. (b) prohibits barbiturates or . . Section 445 the sale or person “any person years twenty-one age to such transfer required weapon 36A. It was a or to under by 1971, carrying deadly federal law.” In the misdemeanor of upon property 1971, 614; 27, school was established. Acts ch. art. § year Assembly, later the General more and more violence, concerned with the enacting of crimes increase further took action “handgun” 1973, felony statute. it became a under the law of weapons, open this State for an individual have certain whether or concealed, person, on or about his “while aboard or with intent to board an engaged 1973, 334; aircraft Code, air certificated commerce Acts services.” ch. 27, art. 36A-1. § variety These weapons. “carrying various statutes covered a or wearing weapon” 27, statute, 36, enacted, applied “any art. as first § pistol, dirk-knife, bowie-knife, slung-shot, billy, sand-club, knuckles, metal any dangerous deadly any razor or other or kind whatsoever (penknives excepted).” weapons As in effect in 1971 the same were proscribed added, exception being knife” “switchblade had been changed “penknives without switchblade.” With the enactment of the “handgun” 1972, “pistol” “handguns” statute in was eliminated and were excepted. By 718, “nunchaku”, consisting Acts ch. “a defined as device pieces wood, metal, plastic, of two any or other like substance connected chain, rope, exceeding leather or other flexible material inches in length” (a) (b). effect, “handguns” was added. As now in are “carrying wearing without weapon” the ambit of the statute. When the
656 its discretion
Kaschenbach asks if the trial court abused denying new trial “where the evidence the motion for a clearly a the had failed to show that reveals that State tear-gas (d)?” gun handgun is a under Article Section 36B handgun in holding weapon a Our here was contemplation question. dispositive the statute is deciding urges that the court below erred
Howell also
handgun
gas gun
that a tear
is included under the
statute.
holding
our
the court did not err.9
Under
handguns
provisions
pistols
Legislature
from the
and other
excluded
statute,
36B, provisions
weapon”
“carrying
wearing
it included
or
§
felony
making
a
comparable
handgun
it a
to use
36. In addition to
to those
§
statute, by
(b)
(d),
36B
36B
of crime
§
in the commission
§
wear, carry,
transport any
any person to
or
it a misdemeanor for
made
wear,
person,
open, upon
handgun,
his
or to
or
or about
whether concealed
open,
any handgun,
carry
any
airways
State. Punishment
(b) (i), (ii), (iii)
knowingly transport
or
whether concealed
or
waterways,
roads, highways,
upon,
public
traveling
or
vehicle
generally
public
parking
in this
upon
used
roads or
lots
or
subsequent
in 36B
offenses were set out
for first and
§
(c).
Exceptions
provided
(iv).
were
in 36B
and
§
robbery
authorizing greater penalty
committed
the statute
Neither
“carrying wearing weapon”
deadly weapon
dangerous
nor the
or
and
with a
statute defined
deadly weapon.”
“dangerous
has
Judicial decision
used or
indicated,
anything
designed
“weapon”,
to be
have
as
as we
defined
used in
injuring
enemy,
destroying, defeating,
or as an instrument
or
State, supra, 214-215. It is
Bennett v.
or defensive combat.
offensive
necessary
dangerous
deadly,
show, however,
weapon
or
sufficient,
proof
being
State,
(1959),
v.
of either
Bell
II Howell, goes appeal propriety whose to the of the judgments against him, questions sufficiency also of the evidence to sustain each conviction. accepted opinion Attorney General, (1973), an 58 O.A.G. 576 “abundantly handgun
which found it clear that the term as defined in 36(P’) Maryland Section same 18 of Article 27 of the Annotated Code of covers the contemplated weapons 1968’, in the ‘Gun Control Act of codified at (3). any U.S.C. The Gun Control Act of 1968defines firearm as ‘. . . weapon (including gun) designed may readily a starter which will or is to or expel projectile by explosive; (B) be converted to action of an any weapon; (C) any frame or receiver of such firearm muffler firearm or (D) silencer; any destructive device. Such term does not include an antique question firearm.’ . . . There can be no but that the definition of contemplates firearm contained in the Gun Control Act of 1968 Maryland includes the definition of a under the Statute.” The testimony weapon court observed that the of Donahue was that the here expel projectile by explosive, “could not be corrected to the action of an any projectile already designed expel.” other than which it was The court “projectile”, weapon question discussed and found that the fell within the “designed expel projectile by definition of a device the action of an explosion.” finding, The court made alternative that the fell “any (D) within the definition of destructive device”set out in subsection of testimony court, the federal statute. “Because the before the and common sense, device, proximity tell us that this if used in close to the skin or the eyes, would have a certain destructive effect. . . The court continued: “So approach opinion that under either it is the court’s that this device falls Legislature, certainly within the definition as set forth falls contemplation Legislature passage within the at the time of the words, holding this Bill. In other the court is as a matter of law that the Legislature, through language, legislative had the intent to include prohibition within the exhibit in this case.” contained Article 36 devices such as the [B] State’s not, now, Maryland handgun We need and do not determine whether the weapons statute 1968. covers same included the federal Gun Control Act of The Conviction Assault with Intent to Rob testimony Clough legally
The was sufficient to establish of an assault with intent corpus to rob him as delicti charged, argue contrary. and Howell does not Howell proof agency, claiming attacks the of his criminal that “the questionable case was identification this instant and not Clough positive believeable.” We observe that made a judicial identification of Howell as one of the felons. This enough in law for the trier fact to find the criminal agency allegations lighting Howell. Howell poor at the time of the commission of the crime was and that Clough in an was uncertain identification at an initial confrontation, go only weight given judicial to the to be positive identification. We note that addition to the *11 Howell, shortly judicial apprehended identification of he was proximity in after the commission of the crime the of the car Clough, description given by stolen from that he fit the Clough police, company he in to the that was of another description felon, who fit the of the second and that a weapon answering description used in the by crime was found at Howell’s feet when he was accosted clearly police. We hold that the court was not erroneous judgment agent in its that Howell was a criminal 1086; Maryland Rule v. assault with intent to rob. Williams (1968). App. 450 State, 5 Md. Handgun
The Conviction Use Clough person At the trial identified Howell as the who gun out, “pulled up my head, stuck and asked me any money. legally if I had . . .”10 This evidence was Clough prosecutor stand, requested leave the witness was “to you right part courtroom, come down into this and I want to look carefully, you identify today anyone around and see if can the courtroom robbery place.” Clough you night whom saw on that this took persons. transcript reads: identified two back, way right. sitting “A. all the to the One your put hand on him. THE COURT: Go back and right here. THE WITNESS: This one Howell of the the conviction to sustain sufficient handgun commission using misdemeanor of (1974); App. 75-80 23 Md. felony. State, Broadway v. court The trial 27, 12; State, supra. Code, v. Williams art. was judgment that Howell clearly erroneous of the indictment. count charged the third guilty as under Rule 1086. Kaschen- Leonard Francis
As to motion denying order bach, Jr.: trial a new affirmed. Howell, Douglas Lowell As to judgments Jr.: affirmed. paid to be costs One-half Kaschenbach, Francis Leonard Jr.11 dissenting: Lowe, /., Hughes pointed out Evans Mr. Charles
In 1928 Justice validity of sustaining constantly judges are they probably would legislators legislation which Attorney]: Indicating the State’s [Assistant MR. TOWNSEND young jacket green the white tie. check man right This one here. THE WITNESS: TOWNSEND): you one was Q. (BY tell the court which Can MR. you? held the on the one that Right A. here. there, you identify people two back THE couldn’t see? Did COURT: *12 right Yes, sir, right there.” one here and THE WITNESS: this Clough persons request identified stood the two whom of the court At the They gave But the record were Howell and Kaschenbach. their names. and does reflect, point, held the was the one who which of the two at this the record gun. should be taken to have cautioned before that care We have present. who held properly the That the man obvious to those show what was “Right here”, the man of the record who does not tell the reader up Fortunately, record on cleared matter was is. cross-examination examining Clough: attorney Clough. stated of Howell’s boy, Howell, is the one who this tall that Lowell “You have told the court pistol.” held the assignment Howell, indigent, applied Defender for to the Public 11. as an assigned public appeal. appearance represent of an him on of counsel to defender to represented represent on Kaschenbach was him was entered. appeal by privately counsel. retained judicial aegis proper and our That is within condemn. scope when we extend the exceed that function function. We to include that which legislatively proscribed activities of proscribe, “might” meant to but did not legislature have clearly so indicate. that, but for laws, nature, activities curtail
Most their a matter of law, accepted continued as would be these my that, lawmakers restrict right. It is view when our the needs rights to accommodate an effort limited to society, should be contemporary the restriction clearly limitations without additional that which is stated by our upon of our citizens being placed the activities the lawmakers judicial interpretation of what we believe should be so without to include. This might intended have opinion the activities restricted. regard our 127, App. but State, 28 Md. I raised no dissent Todd v. trepidation when I my maintained with some silence was carry opinion might language of that how far the considered already There, pointed upon us. out journey is us. The here, legislative intent in majority we found it to be the 27, through 36F Article enacting 36A Sections “ any weapon simulating ... to include hand capable appearance pistol or revolver that is discharging by any propulsion.” a missile method of (Emphasis added). question
I can at least the correctness of our decision Todd',I do dissent from our decision here. propriety outlawing
Whatever our own view of the tear guns may be, play part interpretation of it can no in our enacting Legislature the intent guilty taking the law into proscription. “We must not be really hands, converting what it is to own it from our E ought 1 C Ramsey, what we think it to be.” & Rex v. sought the intent interpreting Todd, the statute in we by referring the New York Maryland Legislature Division, Department, Appellate 1st Supreme Court *13 Columbia, the the of Municipal Appeals of District Court The Appeals of Oklahoma and American Court of Criminal extending Language. English the Heritage Dictionary of Maryland Legislature’s intent to interpretation of the our rung in projectile, we now have gas include tear the Dictionary Third New International Webster’s of English Language Unabridged. projectiles as the gas of declared
If tear consists wadding of a blank majority, more does the so even powder pistol the residue will cartridge since black starter proximity in thereto. penetrate skin when fired close the ridiculous, couple we Reasoning sublime to the from the to interpretation “any propulsion” method of of Todd’s projectile conclude that a water majority’s view of a readily judicial pistol definition of a falls more within majority gun. While the than does tear injury, capable inflicting projectile must be assumed the requirement we no in the statute. find such upon here, majority relied Both Todd and prefacing question. policy” the statute “Declaration increase that the “substantial declaration said effect That injured” is to persons killed or traceable number ways public carrying handguns the streets and on activity. The in criminal persons to use them inclined transporting “wearing, carrying and placed upon restriction that trend. Nowhere do handguns” was intended to reverse indicating legislative therein that the intent find indicia Assembly air meant include that restriction General guns gas pistols. or tear of both and the instant me that the facts Todd
It seems to only legislation effective, if that the case are indicative pistols (Todd, air degree. criminals resort to a limited When danger gas guns, of death and serious supra) and tear greatly perpetration injury in of crime lessened. (to me) policy that since we cannot indicates declaration danger absolutely, stop of death crime find the means handgun will injury commission thereof with a from the onerous, especially be more difficult and toward the made *14 may preserved while we continue to limb be life and end that property preservation of as well. the solution to seek the policy, majority finds of the to the declaration addition Legislature’s choice of the term sustenance “ the more restrictive word ‘handgun’ than rather wording was a “matter agree this of ...” I that ‘firearm’. ” agree choice; however, I that “firearm” is cannot deliberate By majority’s “handgun.” the own more restrictive than Heritage Dictionary definition, from taken The American of (1973), “[a]ny weapon a “firearm” is English Language added). (Emphasis That term capable firing of a missile.” handguns long arm long well as includes arms as clearly legislative handgun law was not the inclusion in the may restrictive as to the means intent. “Firearms” be more however, type propulsion; it does not restrict of projectile. authority) judicial (for which I cannot cite sense
Common Legislature if intended to to conclude that leads me “carrying, wearing transporting” of tear proscribe so, only carried gas, have done when it would “handgun” in whatever other form it shape but or form pen, compact, cane or may take, a fountain cosmetic such as purchasable weapon of as a self other such container Legislature inconceivable that would defense. It is imprisonment merely subject person to because of the a not do so to shape of the tear container he carried and differently carrying equally dangerous but another liberty assuming shaped that container. have taken the accept majority willing would be a restriction on their requiring shape a should at definition that revolver,” “pistol, if not under the least resemble a [or] sociis,” descriptive terms are “noscitur a since those maxim 36F, express used in the definition in then their holding.” p. in the “narrow See reference thereto restriction, permit opinion. shape a majority Without shaving transport required aerosal bombs would be dispensers. cream my sense lead common
Even more does unauthoritative “projectile” upon me to the conclusion that the term which (spoken majority opinion turns in one of the dictionary definitions), be should viewed the context use, handgun. is fired from a are ie., that which We hard pressed to reach result when we consider sub-atomic must particles projectiles category gaseous-like the same as cartridge majority’s or the shot in shell. The the bullet gas guns opinion Legislature’s intent to include tear entirely by supported a semantic foundation of lexical morphemes. my opinion Assembly if the General wishes
It transporting gas weapons or create the crime of tear add a mandatory penalty using crime, perpetrate them to *15 say enough so in a manner we need should clear York, Oklahoma, seek its intent New the District of among proliferate Columbia scattered terms various dictionaries. respectfully dissent. ALAN HAYES
LEONARD S. BLONDES v. et al. 403, September Term, 1975.] [No. uary 19
DecidedJan