dissenting.
I concur with the majority opinion with regard to the issues of the challenge to the jury instructions and of the sufficiency of the evidence. However, I must respectfully *16dissent from the majority ruling on the sufficiency of the indictment, as that ruling oversteps important constitutional considerations.
First, the majority correctly states the general rule applicable to the sufficiency of the indictments; an indictment must allege all “essential” or “material” elements of the offense; if such an element is omitted, the indictment fails to state the offense; if an offense is not stated, the indictment is fatally defective.
In Ayre v. State, 291 Md. 155, 433 A.2d 1150 (1981) Judge Digges for the Court of Appeals, made the following propositions abundantly clear:
A. An indictment serves five (5) purposes:
(1) to put the accused on notice of what he is called upon to defend by characterizing and describing the crime and conduct
(2) to protect the accused from jeopardy from future prosecution
(3) to enable the Defendant to prepare his defenses
(4) to allow the Court to consider the legal sufficiency of the charges
(5) to allow the Court to identify the legality of the sentence
With regard to No. 1 the purpose is fulfilled if the indictment (a) characterizes the crime and (b) describes the crime.
With regard to (a) characterizing the crime, the indictment must contain all of the essential elements. No particular form is necessary to accomplish this as long as all of the elements are stated in the document.
With regard to (b) describing the crime, the document must contain such additional information as is necessary to inform the accused of the particular conduct alleged to have been committed.
In the case at bar, the majority further holds that this indictment falls within a narrow exception to the general *17rule: the State need not make reference to exceptions to a statutory crime in the charging document. To apply the exception in this case causes a result too sweeping in nature, and denies important constitutional protections.
Article 21 of the Maryland Declaration of Rights ensures “[t]hat in all criminal prosecutions, every man hath a right to be informed of the accusations against him; to have a copy of the indictment or charge in due time to prepare his defense.” One purpose served by such a right is “to put the accused on notice of what he is called upon to defend by characterizing and describing the crime and conduct.” Ayre v. State, supra. (Emphasis added).
This rule has been consistently applied to allow an individual accused of a crime to receive a charging document which, on its face, charges him with committing a crime. In Ayre v. State, supra, omitting the term “knowingly” from a charge was fatally defective, as knowledge was an essential element of the crime. Without an allegation of knowledge, the indictment did not, on its face, state a crime.
In the present instance, the Appellant was brought to trial for carrying a “dangerous and deadly weapon, to-wit: a knife...”1 Such an allegation does not describe criminal conduct. It is not a violation of the law in the State of Maryland to carry a knife. Md.Code Ann. Art. 27, § 36(a); Mackall v. State, 283 Md. 100, 387 A.2d 762 (1978). The Legislature has only prohibited carrying certain types of knives, those they considered dangerous and deadly weapons. The language specifically excepts one type of knife, “penknives without switchblades” from the category of prohibited weapon. However, the words also describe another *18prohibited knife, a penknife with a switchblade. Therefore, an essential element of the crime must be the particular description of the knife. The words in question are, therefore, necessary to completely describe and characterize the type of prohibited, dangerous and deadly weapon. Thus, the Court of Appeals in Mackall v. State, supra, required the state to prove that full description at trial. Therefore, unless the State alleges that the knife is not a penknife without a switchblade, the charge does not describe a crime. This is a clear defect of constitutional dimension. In Ayre v. State, supra, the Court of Appeals said:
“We espouse no novel doctrine in announcing that under the law of this State, in charging documents the elements to constitute the offense are to be averred. Article 21 of our Declaration of Rights imposes no requirement unduly burdensome, and parallels similar mandates existing by virtue of the constitutions of the federal government and many of our sister states. The failure to allege material elements of the offense is not a mechanical defect in the charge, and thus cannot be brushed off by the facile citation of cases which indicate that the modern trend of courts is to reject outworn legalistic formulas for criminal allegations. We deal here not with hypertechnical rules of pleading which plague unwary prosecutors and free fortuitous defendants, but rather a requirement imposed upon the State as a constitutional minimum. As was stated by Chief Judge Marbury for this Court over thirty-five years ago:
‘To the lay mind all of these things are technicalities which should not interfere with prosecution for a crime. This point of view is based upon an assumption, which may be true in many cases, that the party charged knows what he is charged with, and therefore he is not harmed if the crime is not very definitely defined. The purpose of requiring an indictment, however, and of requiring that indictment to set specifically the crime charged, is to protect the innocent man who may be wrongfully charged and who may know nothing whatsoever about the *19crime.. .. [Indictments] are not intended to afford means by which a party, accused of crime, can escape trial because of inconsequential omissions, but the principle must be maintained that the substantial components of the crime must be set out with such particularity that the party accused knows what it is he is being charged with so that, if he is tried the recitals in the charge may be sufficient to protect him from a second trial for the same offense. An objection made on the ground that an indictment fails in these particulars is not a technical objection; it is one that goes to the very heart of the law, and it must be seriously dealt with.’ ” (citations omitted) (Emphasis added)
Despite this clear guidance, the majority would uphold an indictment which, on its face, does not describe criminal conduct. The majority supports that conclusion for three reasons.
First, the majority holds that the words needed in a charging document are matters of common law pleading, not constitutional law. In accord with this view, the Rules of Court could alter pleading requirements without raising constitutional questions. Specifically, the prevailing opinion upholds, as valid, Md.Rule 711(d), which provides in part, that:
“.. . A charging document need not negate an exception, excuse or proviso contained in a statute or other authority creating or defining the offense charged.”
The Court’s distinction between common law pleading requirements and constitutional pleading requirements begs the question. The Maryland Courts have explicitly recognized that Article 21 of the Maryland Declaration of Rights “embodies the ancient pleading rules of the common law.” Ayre v. State, supra. Since this is true, any tampering with common law pleading requirements must necessarily call into play constitutional consideration. This principle is illustrated by cases which uphold rigidly the pleading requirements of the common law. Ayre v. State, supra, State v. *20Dycer, 85 Md. 246, 36 A. 763 (1897). In Dycer, the Court reiterated that an indictment is invalid unless it concludes with the words “against the peace, government and dignity of the State.” See also Md.Rule 711(b). Thus, constitutional requirements for a sufficient indictment far exceed mere considerations of “notice.” It is required at. the least, that all the essential elements of a crime must be stated in the charging document.
Any rule which purports to eliminate such a mandatory requirement must be carefully scrutinized. If it is applied in a manner inconsistent with the Maryland Constitution, the rule is clearly invalid. Heslop v. State, 202 Md. 123, 95 A.2d 880 (1953). Any attempt to avoid considering constitutional issues because of the provisions of a rule is accordingly unacceptable. Where common law pleading requirements have been set aside by rule, constitutional rights are affected.
The second reason the majority states to uphold the indictment is likewise misplaced. The Court concludes that the State need not refer to an exception to a statutory criminal offense when the Defendant has actual knowledge of the charges against him. This is labeled the “subjective test” of an indictment. In effect, the Court looks to whether the Defendant was aware of the offense of which he is charged. This approach lies directly in the face of the traditional tests of a charging document. As recounted in Ayre v. State, supra, indictments are to be reviewed by using an “objective test.”
To support this “subjective test” approach, the Court relies on Howes v. State, 141 Md. 532, 119 A. 297 (1922) and Spurrier v. State, 229 Md. 110, 182 A.2d 358 (1962). These cases do uphold convictions in which an indictment did not negate exceptions to a statutory offense. However, in each case, the Defendant was held criminally responsible “because the facts are pecularily within the knowledge of the defendant.” Spurrier v. State, 229 Md. at 176, 182 A.2d 358. See also, Howes v. State, 141 Md. at 543, 119 A. 297.
*21The “peculiar personal knowledge” proviso was present in both cases. Howes involved a conviction for illegally selling liquor. The statute defining the crime added certain classes of persons who could engage in the activity, including those under order of court to make such a sale, and sales of cider for consumption off the premises. Howes would certainly have access to his authority for the sale, or the types of sales made, while the State would not. Spurrier was charged with carrying a dangerous and deadly weapon under Art. 27 § 36(a). That statute lists certain persons, such as policemen, who may lawfully carry such weapons. Spurrier would certainly have “peculiar knowledge” as to whether he was a police officer or other exempt persons while the State would not.
Both Howes and Spurrier dealt with a narrow exception to general common law pleading rules. The effect of Ayre v. State, supra, on this exception has not yet been determined. However, even assuming, arguendo, that the “subjective test” is constitutionally permissible in this narrow context, the case at Bar does not call for the application of that test. The present dispute concerns the type of a knife. The State had possession of the knife at the time of trial. Appellant was not privy to any “peculiar personal knowledge” about that knife. Therefore, the “subjective test” does not apply. Rather, the general rule governing indictments should control here, namely, an “objective test.”
Applying an “objective test” to the indictment at issue, leads to the inevitable conclusion that the words employed by the State as to the “knife” do not describe any known criminal conduct. As such, the indictment is Constitutionally deficient.
Finally, the majority maintains that the Court of Appeals has impliedly approved of indictments which do not negate exceptions. This assertion is based on a footnote in Mackall v. State, supra, where the sufficiency of the indictment was not at issue. The Mackall court’s reference was as follows:
*22“The sufficiency of the indictment in the case sub judice is not an issue. In any event, see former Maryland Rule 712 a, now Maryland Rule 711 d, effective 1 July 1977.” 283 Md. at 110, 387 A.2d 762 (footnote 10)
Within this reference the Court does not directly discuss the efficacy of Rule 711 d. The statement is a gratuitous one, and as such hardly compelling authority for the holding of the majority, especially since that decision pre-dated Ayre v. State, supra.
In conclusion, I dissent because the indictment in this case does not meet the Constitutional minimum of Article 21 of the Maryland Declaration of Rights. Accordingly, I would reverse the appellant’s conviction of carrying a concealed dangerous and deadly weapon in indictment no. 18129303.
. First Count
On the 19th day of September, in the year of our Lord Nineteen hundred and eighty-one, in the City aforesaid, unlawfully did wear and carry concealed upon and about his person, a certain dangerous and deadly weapon, to-wit: a knife, contrary to the form and Act of Assembly in such case made and provided, and against the peace, government and dignity of the State. (Carrying concealed Weapon, Art. 27 § 36) (R-7 9)