MD law question....legalese

novus collectus · Sep 29, 2007

Ok, just what is this quote saying? Does it say the state cannot read into statute something that is not there?

“[W]hen 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 offense, the exception must be interposed by the accused as an affirmative defense.”Mackall, 283 Md.

http://64.233.169.104/search?q=cach...ll+v.+State,+283+Md.&hl=en&ct=clnk&cd=1&gl=us

zoostation · Sep 30, 2007

Owww, the makes my head hurt. But the way I read it, if the exception to a law is spelled out specifically in the particular law the defendant is charged with violating, and the defense raises that exception as covering the defendant, then the burden is on the state to disprove that the exception doesn't cover the defendant.

But if the exception is not spelled out in the law, or how the offense is defined, but the defense wants to assert it still exists, then it is up to the defendant to raise and prove it as a defense.

That's how I read it anyway. I've got a paper for grad school to write this Sunday, I can't use too much brainpower on this. I really don't have a lot to spare :tongue13:

3rdRcn · Sep 30, 2007

Man, it was way too early to read something like that. I think my brain just splodded.

jpk1md · Sep 30, 2007

Going for coffee first.....I'll be back...

CharlieFoxtrot · Sep 30, 2007

This quote addresses the issue of which side (State or Defendant) has the burden of proving a defense to an alleged criminal act. It basically says that if the criminal statute provides for a defense or exception in the statute itself then the State has the burden of proving that exception doesn't apply. If the Defendant is raising another defense to the act (such as a general defense like entrapment) then the Defendant has the burden of proving that the defense is a valid one.
Hope this clarifies a little.

K31 · Sep 30, 2007

Welcome CharlieFoxtrot.

CharlieFoxtrot is one of my favorite expressions at work because we have a lot of walking CharlieFoxtrots.

novus collectus · Sep 30, 2007

Welcome CharlieFoxtrot and thanks.

VNVGUNNER · Sep 30, 2007

Welcome

novus collectus · Sep 30, 2007

Ok guys, this is why I asked the question.
The quote is from a 1978 MD Court of Appeals case where they determined a penknife was any folding knife (that is not automatically openned by springs or a folding gravity knife). I wonder if the exception for wearing, carrying or transporting a handgun as long as it is unloaded and in an enclosed case or enclosed holster in 4-203 means that the state cannot read into the statute that which is not there.
For instance, some claim ammunition must be kept seperate from the handgun in addition to the handgun being unloaded. If there is nothing in the statute addressing ammunition and wearing, carrying and transporting is in the exceptions part, then does this appeals court precedent set the stage for not allowing the abritary additions by interpretation by the state to mean further restriction?

zoostation · Sep 30, 2007

Novus I don't read that as getting you there. I think the point you are making can probably be proven, just not with that case. This particular case reads to me as more defining that the defendant cannot invent exemptions which are not spelled out without proving their applicability.

I think the state not being able to read into laws that which is not specified is a much more basic and older issue than this decision. My suggestion would be to look further back, maybe into the state constitution and even English Common Law for some precedents. That would be a start. That's what I think anyway.

CharlieFoxtrot · Sep 30, 2007

Thanks everyone for the welcome. One of the problems with that statute is it does not define what "unloaded" means. In fact nowhere in the criminal code or in Maryland's body of case law is the term "unloaded" defined. That means its is up to the trier of fact to ultimately determine what "unloaded" means in a contested case. In my opinion there is nothing in the law to require that the ammunition be kept apart. Of course an LEO or prosecutor might differ...

ThatIsAFact · Oct 6, 2007

In my opinion, what the term "unloaded" means, in the statute, is a pure question of law, not a question of fact. I assert that it means that the handgun in question contains no unspent cartridges. In the case of a semi-auto, this would mean empty magazine (or no inserted magazine) and empty chamber. There have been claims that a loaded detached magazine could be considered a loaded handgun, but in past threads on this subject, nobody has yet come up with a single Maryland case to support this implausible proposition, which I hold to be an urban legend. There used to be a couple of state agency websites that asserted that ammunition must be kept separate and/or that detached magazines must be unloaded, but when it was pointed out that those statements were not supported by the law, they were corrected.

In a given case, whether or not a specific handgun was really "unloaded," as defined above, is a question for the trier of fact. But the meaning of the term "unloaded" is a matter of law.

I am not a lawyer and this is not legal advice.

lionfour · Oct 7, 2007

"unloaded"
My state of mind after a duration of 12 plus hours since
my last trip to a watering hole.

Seriously--to consider a gun loaded if the magazine is full, but not
inserted into the gun is ridiculous--the gun is not ready to fire.

CharlieFoxtrot · Oct 7, 2007

ThatIsAFact said:
In my opinion, what the term "unloaded" means, in the statute, is a pure question of law, not a question of fact.

In a given case, whether or not a specific handgun was really "unloaded," as defined above, is a question for the trier of fact. But the meaning of the term "unloaded" is a matter of law.

lionfour said:
Seriously--to consider a gun loaded if the magazine is full, but not
inserted into the gun is ridiculous--the gun is not ready to fire.

I spent the better part of three days in a jury trial fighting over what the definition of unloaded was. Judges are very reluctant to insert definitions that are not mentioned in the statute. Ultimately the judge let it go to the jury without any definition of the term. They had to each apply their own interpretation of what unloaded meant.

Jim Sr · Oct 7, 2007

CharlieFoxtrot said:
Thanks everyone for the welcome. One of the problems with that statute is it does not define what "unloaded" means. In fact nowhere in the criminal code or in Maryland's body of case law is the term "unloaded" defined. That means its is up to the trier of fact to ultimately determine what "unloaded" means in a contested case. In my opinion there is nothing in the law to require that the ammunition be kept apart. Of course an LEO or prosecutor might differ...

Answering a question, with a question! :sad53:

For those that hunt with a muzzleloader: :thumbsup:

At the end of the day's hunt, do you unload, (fire off,) your gun? (Remember; it is now after dark, and past legal shooting hours,) or just take the cap off?

novus collectus · Oct 7, 2007

Jim Sr said:
Answering a question, with a question!

For those that hunt with a muzzleloader:

At the end of the day's hunt, do you unload, (fire off,) your gun? (Remember; it is now after dark, and past legal shooting hours,) or just take the cap off?

By strict reading of the statute

10-410
(c) (1) A person may not shoot at any species of wildlife from an automobile or other vehicle or, except as provided in § 4-203(b) of the Criminal Law Article and Title 5, Subtitle 3 of the Public Safety Article, possess in or on an automobile or other vehicle a loaded handgun or shotgun, or a rifle containing any ammunition in the magazine or chamber.

I would say that "any" ammunition in the chamber would make it illegal to have ball and powder since "ammunition" is not defined in the Natural Resources article (that I can find). Of course though that also brings up another question of definition. If "ammunition" is not defined, then neither is "rifle". Is a non-fixed ammo, muzzloading firearm a "rifle" in MD? After all the staute did not say "firearm" which would include all firearms.
I mean technically a rifled bore BB gun is a "rifle", so would that mean driving around with a BB gun with a BB in the magazine is also a violation of the statute?
Now if a muzzloader is not considered under the definition of "rifle", then that would mean they would not have to be unloaded under the statute at all.......man my head hurts now! :shocked4:

But this is like the idea that it seems illegal in this same statute for police officers to have loaded shotguns in the patrol cars (no police officer exception). Who is going to enforce it?
Woe will be the day a police officer tries to charge a criminal under this statute with a capless, but loaded blackpowder gun in their car. If the jury finds them guilty, then that would screw BP hunters.

novus collectus · Oct 7, 2007

CharlieFoxtrot said:
I spent the better part of three days in a jury trial fighting over what the definition of unloaded was. Judges are very reluctant to insert definitions that are not mentioned in the statute. Ultimately the judge let it go to the jury without any definition of the term. They had to each apply their own interpretation of what unloaded meant.

Have any more details on the case? Was the magazine in the handgun, near the handgun or loaded but in the trunk?
What did the jury decide?
What is your understanding? Would you charge someone if they had a loaded magaxine sitting next to the unloaded handgun in an enclosed holster sitting on the seat next to them (as I do) or in the same container on a motorcycle while going to the gun range?

CharlieFoxtrot · Oct 7, 2007

novus collectus said:
Have any more details on the case? Was the magazine in the handgun, near the handgun or loaded but in the trunk?
What did the jury decide?

I have to be a little vague as I won the case and it has since been expunged. However the handgun had a loaded magazine in it, but no round in the chamber. In talking to some jurors afterwards I don't think they bought my argument that the gun shouldn't be considered loaded.

What is your understanding? Would you charge someone if they had a loaded magaxine sitting next to the unloaded handgun in an enclosed holster sitting on the seat next to them (as I do) or in the same container on a motorcycle while going to the gun range?

As ThatIsAFact noted the MSP website used to say the ammo had to be separate. That's BS. There's nothing in the statute other than it must be unloaded and in an enclosed case or holster. I transport my handguns to the range in my range bag (ie an enclosed case) without any magazine in them. Also in the range bag is usually my ammo. I will also carry loaded magzines in the same range bag and I believe I am fully complying with MD law when I do so.

MD law question....legalese

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