(concurring in the result) — Defendants were convicted by a jury of unlawfully possessing marijuana. The information, without amplification and without specifying the type or kind, simply charged “Possession of Narcotics.” Defendants understood, however, that the term “narcotics” in the information meant cannabis, for they did not demand a bill of particulars nor did they claim vagueness. Had they challenged the information or demanded a bill of particulars, the court, in all likelihood, would have sustained their plea of vagueness (RCW 10.37.052) and required the state to specify the nature, kind and type of narcotics alleged to have been in the accuseds’ possession. State v. Royse, 66 Wn.2d 552, 403 P.2d 838 (1965); Seattle v. Proctor, 183 Wash. 299, 48 P.2d 241 (1935); State v. Catalino, 118 Wash. 611, 204 P. 179 (1922). Since the information employs the language of the statute and appears legally sufficient, this court must assume from the record *27that the defendants knew they were charged with illegal possession of the narcotic drug marijuana in violation of RCW 69.33, the Uniform Narcotic Drug Act.
Subsequent to the entry of judgment against Robert Zomes, sentencing him to 20 years’ imprisonment under the Uniform Narcotic Drug Act, the legislature removed cannabis, or marijuana, from the narcotics act and redefined it as a dangerous drug. Laws of 1969, 1st Ex. Ses., ch. 256, p. 2383; RCW 69.40.110. This reduced the punishment, for an earlier legislature had changed a first offense possession of a dangerous drug from a felony to a misdemeanor. Laws of 1963, ch. 38, § 23, p. 377.
One can readily accept the court’s statement about marijuana that “The fact that the legislature did, in another act, define it as a ‘narcotic drug’ did not change its nature and give it properties which it does not possess.” But that statement ought not be taken to imply that the legislature could not constitutionally define it or classify it as a narcotic. Accordingly, when the information was filed, cannabis sa-tiva in my judgment was properly defined by statute as a narcotic drug, and the court cannot declare as a matter of law that, because of its medical and chemical properties and physiological effects, marijuana should have been included among the dangerous drugs and not among the narcotics. However, the legislature may have defined or classified marijuana — narcotic, dangerous drug, or neither —it acted in exercise of its powers under the constitution to legislate upon drugs, medicines, pharmaceuticals and biologicals and to define crimes.
Although marijuana might be said to fall within the generic classification of dangerous drugs, I do not see where this gave the prosecuting attorney discretionary powers of selection and enabled that officer to charge the accused of possession as a felony under the Uniform Narcotic Drug Act or as a misdemeanor under the dangerous drug act (RCW 69.40). The Uniform Narcotic Drug Act specifically defines cannabis as a narcotic drug; the prosecuting attorney in charging possession of marijuana had no choice but to designate it as a narcotic drug. That mari*28juana may also be described medically as a dangerous drug, did not, in my opinion, authorize the prosecuting attorney at his discretion to accuse one of possessing it either as a narcotic which is a felony or as a dangerous drug which is a misdemeanor.
The unconstitutional powers of selection denounced in Olsen v. Delmore, 48 Wn.2d 545, 295 P.2d 324 (1956), do not exist in the present case in my judgment because there is a difference between possessing narcotics and possessing dangerous drugs. The two crimes have different elements. Proof that the accused unlawfully possessed a dangerous drug would not establish that he possessed a narcotic drug, and vice versa. If there is a difference in any of the elements of two similar crimes or if either will require a difference in proof, they are not identical and the prosecuting attorney, depending upon the evidence available, has a constitutional discretion to decide whichever charge he will bring. State v. Canady, 69 Wn.2d 886, 421 P.2d 347 (1966); State v. Seger, 1 Wn. App. 516, 463 P.2d 185 (1969); United States v. Garnes, 258 F.2d 530 (2d Cir. 1958); State v. Reed, 34 N.J. 554, 170 A.2d 419 (1961).
Cannabis sativa, as noted, was expressly named and defined in the Uniform Narcotic Drug Act as a narcotic drug, and was not mentioned in the dangerous drug act. The majority recognizes the familiar rule of statutory construction that the specific governs the general. Applying this rule means that the accused could have been charged only under the statute which specifically defined marijuana as a narcotic. In implying otherwise, the court unnecessarily, I think, beclouds and casts a pall of unconstitutional doubt upon both the Uniform Narcotic Drug Act and the dangerous drug act. I would avoid the implication, therefore, that either or both the Uniform Narcotic Drug Act (RCW 69.33) and the dangerous drug act (RCW 69.40) are unconstitutional.
Regardless of how marijuana may be regarded medically, I think the legislature left no doubt as to its intentions in defining it as a narcotic. It made the legislative purpose unmistakably clear to a person of common understanding *29when it explicitly named cannabis as a narcotic drug. The information charged defendants with unlawfully possessing a narcotic drug, meaning marijuana. Under the Uniform Narcotic Drug Act, marijuana was named and specified as a narcotic drug and was not included in the dangerous drug act as a dangerous drug. In RCW 69.33.220(13, 14), of the Uniform Narcotic Drug Act (before the 1969 amendment), it was designated as a narcotic through both its scientific and common names, as follows:
(13) “Cannabis” includes all parts of the plant Cannabis Sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.
(14) “Narcotic drugs” means coca leaves, opium, cannabis and every other substance neither chemically nor physically distinguishable from them . . .
Nowhere was cannabis or marijuana named as a dangerous drug under the dangerous drug act. RCW 69.40.060, 69.40.061.1 do not see how the prosecuting attorney had an option to charge either a felony or a misdemeanor of the identical offense, i.e., possession of marijuana as a felony or possession of marijuana as a misdemeanor. An information, therefore, laid under the Uniform Narcotic Drug Act charging one with possession of marijuana charged a felony, and could not sensibly be claimed to be a misdemeanor for, as the court points out, where there are both general and specific sections relating to the same or similar subject matter, the specific definition or designation is controlling.
To reach a conclusion that the Uniform Narcotic Drug Act and the dangerous drug act were duplicitous with respect to marijuana, the court makes certain assumptions which I find untenable. Its observations as to the medical *30and chemical properties and psychological and emotional effects of marijuana I think not only scientifically questionable but beyond the judiciary’s constitutional sphere. Whether marijuana was to be regarded as a narcotic drug or a dangerous drug or neither was a matter falling peculiarly within the legislative sphere of action 'and outside that of the courts. Thus, in assuming that marijuana cannot be lawfully defined by the legislature as a narcotic, the court, in my judgment, overstepped its constitutional limitations.
In a case of this kind, the judiciary should limit itself to ascertaining the legislative definition and applying it to the case at hand. Scientific judgments are more appropriately left to scientists, and definitions in the criminal law to the legislative branch. When these definitions do not meet the test of time, subsequent legislatures and latter-day scientists may change them. Contrarily, when the judiciary makes formal pronouncements as to the existence of one thing or another, there is always a danger that in the course of time these may turn out to be wrong and that which is declared fact today may amount to no more than fancy tomorrow.
If there exists in fact any reasonable basis whatever for it — however remote that may be — the legislature’s definition is controlling. Here, however, the basis was not remote but immediate and appropriate because there existed a substantial, scientific basis in fact to treat marijuana legislatively as a narcotic. Medical classifications and definitions frequently overlap and coalesce. It is quite likely that many drugs generically described as narcotics are dangerous drugs, too, and that a good many of what are called dangerous drugs produce a variety of narcoses. Their physiological and psychological effects, of course, depend in some degree on the drugs’ strength and concentrations and the individual characteristics of the persons taking them, and these variables may also condition their medical description and definition. For example, one classification of drugs known as hypnotics inhibits the afferent impulses, or cortical centers, of the brain, causing insensibility to pain and may produce *31complete or partial unconsciousness. In other contexts, these drugs could logically be called narcotics for purposes of law.
Hypnotics include sedatives, analgesics, anesthetics and intoxicants. When used to induce sleep, they can be logically described as narcotics, or somnifacients or soporifics. Among the milder forms of hypnotics are sodium bromide, potassium bromide, ammonium bromide and aspirin; stronger ones include trional, veronal, chloral hydrate, chloralamide. Other hypnotics include such derivatives of barbituric acid as luminal (phenobarbital), barbital (ver-onal), dial, amytal, allonal, and many others — all of which are both narcotics and hypnotics. Also included among hypnotic drugs are the more classically styled narcotics such as opium and morphia and its derivatives. Although analgesics and anesthetics are defined as hypnotics, they are not generally considered to be narcotics. See Taber’s Cy-clopedic Medical Dictionary (9th ed. 1963).
Thus it is seen that medical definitions and classifications concerning narcotics include the drugs which produce sleep or stupor, or depress the central nervous system to relieve pain or induce sleep, but which, in excessive doses, will produce unconsciousness, stupor, coma and death. These classifications would necessarily include some drugs which meet the generic classification of dangerous drugs as well. More explicit examples of narcotics, however, are opium, morphine, codeine, papaverine, heroin and numerous synthetic drugs, and if the legislature chose to include marijuana among them it was, in my view, a legitimate legislative action.
Even the court’s description of the multifarious effects of marijuana cited from D. Pet, M.D., and J. Ball, Ph.D., Marihuana Smoking in the United States, 32 Federal Probation 8 (No. 3, 1968), I think would warrant including marijuana among the narcotic drugs. Accordingly, it was well within the legislature’s province as a matter of fact as well as of law to classify marijuana either as a narcotic drug or a dangerous drug or as neither.
When the legislature acted within its powers in defining and classifying drugs, medicines and pharmaceuticals in *32both the Uniform [Narcotic Drug Act and the dangerous drug act, there then devolved upon the courts an inescapable duty to sustain these definitions and classifications and enforce them. Such observations as the court makes that the use of marijuana does not lead to addiction; that its use can be discontinued without withdrawal symptoms; that the human body does not develop a tolerance to it; that some individuals become emotionally dependent upon it— the court does not differentiate between emotional dependency and addiction; or that marijuana in itself creates no problems of addiction, not only are open to doubt and question but do not, in my opinion, affect the legislative definitions so long as the legislature had a rational basis for concluding otherwise.
And there is abundant evidence that the legislature may have been right the first time and that the court’s assumptions are in error. Whatever may be said of marijuana, common sense indicates that its physiological, emotional and psychological effects upon the human system undoubtedly depend upon the length of time it is used, how it is used, the particular species used, its strength or concentration, the amount and intervals taken, and the differing reactions of different individuals to it. The legislature was, therefore, well within its powers in defining marijuana as a narcotic drug and later in redefining it as a dangerous drug, for it could appropriately be classified either way for purposes of law.
The legislature and not the courts decides what punishment shall fit which particular crime. It may well be that, when it described marijuana as a narcotic instead of as a dangerous drug, it was aiming at the evil of heroin, LSD, opium, morphine, cocaine and other hard narcotics, and a majority of the legislators held to the belief that criminals who sold marijuana in all likelihood pushed the sale of other drugs, too. Contrarily, in changing the definition of marijuana from a narcotic to a dangerous drug and thereby reducing the penalty for the first offense of possessing marijuana, a majority of the legislature may well have concluded that there is little or no connection between the sale *33and possession of marijuana and the sale and possession of heroin, opium, morphine or cocaine. Time is long and ideas change. A future legislature may feel obliged to increase the penalties to meet ever-changing needs and conditions. It should have the same freedom and power as its predecessors. Whatever the actual basis for change, the power to make it rests in the legislature and not the courts.
I do agree with the majority, however, that, in employing the imprecise phraseology of the proviso “That narcotic drugs shall not include cannabis and the provisions of this chapter shall not ever be applicable to any form of cannabis,” the legislature in Laws of 1969, 1st Ex. Ses., ch. 256, § 7, p. 2385, amending RCW 69.33.220, must have intended to make the amendment and consequent reduced penalty for possession of marijuana retroactive. This seems to be the most sensible construction available.
I would, therefore, as the majority has done, reverse with directions that the defendants be brought to a new trial on the charge of illegal possession of marijuana under the dangerous drug act (RCW 69.40) as amended.
Neill, J., concurs with Hale, J.
September 16, 1970. Petition for rehearing denied.