dissenting.
I must respectfully but strongly dissent from the majority opinion. This Court overturns the jury decision in the circuit court on the basis of its interpretation of the commentary to KRS 520.010(3).
The majority has erred in two fundamental respects. It has improperly substituted its judgment for that of the jury verdict and has misinterpreted the plain meaning of the statute. I believe the jury fully understood the language of the law and properly found the appellant guilty under a very reasonable interpretation. The legislature also comprehended the words they used in adopting the statute. Only the commentary and this Court are out of step with reality.
In the absence of clear error or manifest injustice, appellate courts should not tamper with a jury verdict. Neither condition exists here.
I believe the statute is clear, but the commentary is vague and ambiguous. The statute here precisely defines contraband as that which may endanger the safety or security of the detention facility or its inmates. In attempting to classify various items of contraband, the commentary has wandered into the morass of ambiguity. It tries to provide examples to distinguish dangerous and simple contraband. However, I find nothing in the commentary which excludes other items of contraband from being factually determined as dangerous.
Kentucky has elevated the commentary on the penal code to almost the dignity of statutory enactment. The commentary is used to ascertain legislative intent where it is not clear. Here the plain meaning of the law is clear. Dangerous contraband is that which is capable of such use as may endanger the safety or security of the detention facility or the persons therein. The commentary uses examples which are definitely not exclusive. Under the circumstances, I believe the trier of fact, whether judge or jury, has the inviolate privilege of determining what is dangerous under the law. The majority in this decision substitutes its judgment for that of the trier of fact.
The language used in legislation should be understood and applied according to the ordinary sense or natural meaning of the words.
Under the rules of construction, the penal code is liberally construed according to the bare import of its terms to promote justice and to effect the objects of the law. KRS 500.100 provides that the commentary may be used as an aid in construing the provisions of the code. Here we have a triumph of a judicial interpretation of the commentary over the plain language contained in the law itself. I do not believe the statute is being construed according to the fair import of its terms.
The evidence in this ease indicates that a deputy warden at the prison testified that marijuana is treated as dangerous contraband within the reformatory. He had seen the results of brutal beatings and stabbings involving marijuana and testified that where marijuana is sold in prison, debts are run up, interest is charged and weaker offenders are sexually abused. Marijuana causes inmates to become combative towards guards, fellow prisoners and visitors. There is sufficient evidence here to demon*534strate that marijuana is contraband which is capable of such use as may endanger the safety or security of the detention facility and the persons therein.
It should be obvious that any correctional or detention institution has peculiar needs and that the statutes and regulations designed to control articles brought into the prison must be examined in the light of those requirements. United States v. Chatman, 538 F.2d 567 (4th Cir.1976). The question of what is dangerous contraband under the statute is proper for jury or judge determination. Here the jury heard the evidence and determined the substance to be dangerous.
KRS 520.050, promoting contraband in the first degree, is not unconstitutionally vague. It does not require speculation as to its meaning. The legislature does not have to define an offense with such exactness that a person could determine in advance whether specific conduct in all possible factual circumstances will be found to be an offense. State v. Williams, 37 Or.App. 419, 587 P.2d 1049 (1978). Anyone who possesses marijuana in jail should know that he runs the risk of some penal sanction. The prisoners at Kentucky institutions are advised during orientation that marijuana is dangerous contraband.
It should also be noted that marijuana is a Schedule I, Controlled Substance, pursuant to KRS 218A.050(3), and is legally classified as a hallucinogenic.
I am not convinced that the New York case of People v. Soto, 77 Misc.2d 427, 353 N.Y.S.2d 375 (1974), is applicable here. Soto, supra, determined that marijuana was not dangerous contraband; however, that New York case is not persuasive because here there was strong evidence to indicate that marijuana endangers the safety and security of the prison and the people therein.
The Kentucky definition of dangerous contraband is not limited to deadly weapons and dangerous instruments. A person need not be aware of the specific legal classifications of the thing but only know the physical nature of the article and its potential danger. See Kennedy v. Commonwealth, Ky., 544 S.W.2d 219 (1977). By analogy, dangerous contraband is anything which is capable of a use which may cause disorder or physical injury in the prison. Marijuana clearly falls within such a classification. Here there is evidence that marijuana is more easily concealed and more readily brought into the institution than other items of contraband. There was testimony that the LaGrange Reformatory is overcrowded and that it is difficult to observe or control the prisoners under even the best of circumstances.
I find the majority’s comparisons between alcohol and marijuana unconvincing. Generally alcohol is legal for adults; however, marijuana is illegal for everyone. There is no scientific evidence presented in this reference to justify such a comparison. There is no equality of substance or conditions that can be validly applied. The excursion into comparing alcohol, paint thinner and lemon extract as contraband which also can produce “highs” is of no value. Under specific conditions the legislature has clearly left the decision as to what is dangerous contraband to the triers of fact. The statute is clear; the commentary is confused.
Possession of marijuana, as well as alcohol, within a prison, should be punished more severely than our laws may now provide. If this decision becomes law, certainly the legislature should seriously consider redefining this section of the penal code.
Accordingly, I must respectfully dissent from the decision for two reasons: first, the interpretation of the statute is in violation of its clear meaning and the rules of construction; second, the facts presented before the jury clearly demonstrate that marijuana is a dangerous substance. There is no reason for this Court to substitute its judgment for that of the trier of fact.
Common sense dictates that to determine by appellate judicial fiat that marijuana in a prison is not dangerous contraband produces a patently absurd result.