concurring-in-part-and-dissenting-in-part">

OPINION CONCURRING IN PART AND DISSENTING IN PART BY

JUSTICE GRAVES

Although I concur with most of the majority’s opinion, common sense and reason compel me to dissent in regard to Part III because the logic of words should yield to the logic of realities.

Murder and kidnaping are the only two capital crimes in the Penal Code. I disagree with the majority that kidnaping is not available as an aggravating circumstance authorizing capital punishment for a conviction of murder. Kidnaping is enhanced to a capital offense by the victim’s death. Even though the victim’s death *454need not have been intended, the additional element of intent to kill in the murder statute, KRS 507.020 is an aggravating factor that should authorize capital punishment. That is, the universal should include the particular. One can determine what is right in specific cases even without a universal theory of what is right.

I believe that under KRS 532.025(2)(a) and Harris v. Commonwealth, Ky., 793 S.W.2d 802 (1990), the trial court was correct in allowing Kidnaping to be a proper aggravating circumstance for a jury to consider in a capital murder case.

We held in Harris, that the aggravating circumstances that a jury can consider in a capital case are not limited to the seven enumerated in KRS 532.025(2)(a), but rather the introductory language of KRS 532.025(2)(a) allows for a judge and jury to consider “any aggravating circumstance otherwise authorized by law.” Id at 805. Kentucky law holds that kidnaping is a capital offense that warrants consideration of the death penalty if the victim is not released alive. KRS 509.040(2). Therefore, since the General Assembly has established kidnaping to be a capital offense, then certainly it must also be an aggravating factor that warrants consideration of the death penalty for the capital offense of murder. It takes no legal gymnastics, linguistic chicanery or judicial activism to reach this conclusion. In fact, considering the context in which the statute was written, the Harrisinterpretation gives proper meaning to the words in the statute.

In Harris v. Commonwealth, supra,we further held that a defendant is eligible for consideration of a death penalty sentence for kidnaping if the defendant murders his kidnaped victim. Therefore, it defies reason and logic that if a person is found guilty of the capital offense of kidnaping and he murders his victim, then murder is an aggravating factor that can warrant consideration of the death penalty, but if a person is found guilty of murder and has kidnaped his victim, then kidnaping is not an aggravating factor that can warrant consideration of the death penalty. That is, if A equals B, and if B equals C, it should be obvious that A must equal C.

Legislatures are, by definition, designed to reflect the political majority’s will. This is not one of those rare settings where only one literal reading of the statute is possible. The majority opinion does not accord with legislative intent. We . are elected judges interpreting laws enacted by elected legislators. Interpretations should be consistent with legitimate majo-ritarian expectations. Since both murder and kidnaping are the only capital offenses in the Penal Code it is a reasonable interpretation of legislative intent that one should be an aggravator of the other. Until this date Harriswas still the law in Kentucky and served as an important precedent for judges in sentencing. Harriswas correct in interpreting the introductory language of Kentucky Revised Statutes section 532.025(2) to allow a judge or jury to find an aggravating circumstance outside of those listed in section 532.025(2)(a).

In order to avoid making the same mistake twice, the Kentucky General Assembly should clarify this language to make the statute consistent with the legislative intent and the will of the majority. Since the statute is now being read with strict literalism, the General Assembly should be more precise in drafting statutes. When the General Assembly revises the Kentucky Penal Code, it is important to consider the inconsistencies in the interpretation of section 532.025. The legislature should also consider current principles set forth by the United States Supreme Court and draft a new section which is clear on its face in its interpretation and application to avoid a future constitutional challenge *455that the law is “arbitrary,” “capricious, or vague.

WINTERSHEIMER, J., joins this concurring and dissenting opinion.

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