dissenting.
Gary Harrison Hall was convicted of violating Md.Code (1957, 1982 Repl.Vol., 1984 Cum.Supp.), Art. 27, § 36(a),1 *810which prohibits the carrying of certain knives or any other dangerous or deadly weapon (except a penknife without switchblade) concealed upon or about the person. The indictment did not allege that the knife carried by Hall was not within the statutory exception, that is, the knife was not a penknife without switchblade. Hall contended before the Court of Special Appeals that this defect was fatal because the indictment omitted an essential or material element of the crime described in § 36(a). The intermediate appellate court rejected Hall’s contention, holding that a charging document does not have to negate a statutory exception. Hall v. State, 57 Md.App. 1, 468 A.2d 1015 (1983) (2-1 decision). In reviewing Hall’s case, the majority holds that the indictment was sufficient to characterize the crime, and that because Hall failed to file a pretrial motion to dismiss the indictment, this Court need not determine whether the indictment was defective on a non-jurisdictional ground.
I dissent for reasons stated in my dissent in Williams v. State, 302 Md. 787, 794, 490 A.2d 1277, 1281 (1985) (Cole, J., dissenting). It is clear to me that the statute excepts “penknifes without switchblades.” Therefore, to charge properly an offense under this statute, the indictment must particularly describe the weapon involved or state the statutory exception. To do neither is to state no cognizable charge because one of the essential or material elements is missing.
I would reverse Hall’s conviction.
. This statute provides in full:
(a) Carrying concealed or openly with intent to injure; carrying by persons under eighteen at night in certain counties.—Every person who shall wear or carry any dirk knife, bowie knife, switchblade knife, sandclub, metal knuckles, razor, nunchaku, or any other dangerous or deadly weapon of any kind, whatsoever (penknives without switchblade and handguns, excepted) concealed upon or about his person, and every person who shall wear or carry any such weapon, chemical mace or tear gas device openly with the intent or purpose of injuring any person in any unlawful manner, shall be guilty of a misdemeanor, and upon conviction, shall be fined not more than $1,000 or be imprisoned in jail, or sentenced to the Maryland Department of Correction for not more than three years; and in case of conviction, if it shall appear from the evidence that such weapon was carried, concealed 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 prescribed. In Cecil, Anne Arundel, Talbot, Harford, Caro*810line, Prince George’s, Montgomery, St. Mary’s, Washington, Worcester, Kent, and Baltimore 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, 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. [Emphasis supplied.]