(dissents) :
I dissent to this decision because I have reached the conclusion that 21 O.S.Supp. 1973, § 701.1, ¶ 9, cannot be correctly interpreted to apply to the facts of this case. I believe now that my concurrence in Jones v. State, Okl.Cr., 542 P.2d 1316, was, for the same reason, ill-considered. On reconsideration I would dissent to that decision.
This case brings us again the question of whether it is the intent of 21 O.S.Supp. 1973, § 701.1, |f 9, to classify every premeditated killing of a child under seventeen (17) years of age as murder in the first degree, punishable by mandatory death.
*584I believe that the reasoning used by the majority opinion in determining this question goes wrong in not beginning at the beginning. It leaps ahead to a construction of the terms of 21 O.S.1971, § 843, and loses sight of the fact that the primary statute under consideration is Section 701.1.
The place to begin in the interpretation or consideration of Section 701.1 is with the consideration of whether any interpretation or construction is necessary or proper. If the meaning of a statute is plain when its words are given their ordinary everyday sense, then a court must give it that meaning and is not at liberty to employ rules of interpretation or construction to discover another meaning which may seem more probable or natural. Shaw v. Grumbine, 137 Okl.Cr. 95, 278 P. 311. There is room for construction, however, when the words are inherently ambiguous, in conflict with other language of the statute, or lead to an intolerably absurd result. There is a conflict between two provisions of Section 701.1.
That statute is a specific reference statute; that is it refers specifically to Section 843 and adopts the terms of that statute without restating them. After incorporation of the provisions of Section 843 into Section 701,1, the conflict becomes apparent :
“Homicide, when perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being, is murder in the first degree in the following cases:
“1. When perpetrated against any peace officer, prosecuting attorney, corrections employee or fireman while engaged in the performance of his official duties;
“2. When perpetrated by one committing or attempting to commit rape, kidnapping for the purpose of extortion, arson in the first degree, armed robbery or when death occurs following the sexual molestation of a child under the age of sixteen (16) years-,
“3. When perpetrated against any witness subpoenaed to testify at any preliminary hearing, trial or grand jury proceeding against the defendant who kills or procures the killing of the witness, or when perpetrated against any human being while intending to kill such witness;
“4. When perpetrated against the President or Vice President of the United States of America, any official in the line of succession to the Presidency of the United States of America, the Governor or Lieutenant Governor of this state, a judge of any appellate court or court of record of this state, or any person actively engaged in a campaign for the office of the Presidency or Vice Presidency of the United States of America;
“5. When perpetrated by any person engaged in the pirating of an aircraft, train, bus or other commercial vehicle for hire which regularly transports passengers ;
“6. When perpetrated by a person who effects the death of a human being in exchange for money or any other thing of value, or by the person procuring the killing;
“7. Murder by a person under a sentence of life imprisonment in the penitentiary ;
“8. When perpetrated against two or more persons arising out of the same transaction or occurrence or series of events closely related in time and location.
“9. When perpetrated against a child while in violation of Section 843, Title 21 of the Oklahoma Statutes; [to wit: Any parent or other person who shall willfully or maliciously beat or injure, torture, maim, or use unreasonable force upon a child under the age of seventeen *585(IT), or who shall cause, procure or permit any of said acts to be done, shall be punished by imprisonment . . . ] and
“10. Intentional murder by the unlawful and malicious use of a bomb or of any similar explosive.” (Emphasis added)
Paragraph 9 classifies as murder in the first degree a premeditated killing in which the victim is under the age of seventeen (17) years; paragraph 2 classifies as murder in the first degree a premeditated killing in which death follows a sexual act and the victim is under the age of sixteen (16) years. The construction by the majority opinion fails to resolve its conflict. If paragraph 9 does in fact include every killing of a child under the age of seventeen (17) years, and is not limited to a case in which the killer is a parent, or one in loco parentis, then the words of paragraph' 2 are meaningless. Such a construction violates the fundamental rule that a statute is to be construed so as to give meaning to each phrase, clause or section where it is possible so to do. See, Ex parte Lewis, 85 Okl.Cr. 322, 188 P.2d 367,
It is also apparent now that if the Legislature intended paragraph 9 to say nothing more than “When perpetrated against a child under the age of seventeen (17) years” as the majority opinion holds, it chose an inexplicably circuitous way of reaching that result.
I believe that the incorporation of Section 843 into paragraph 9 of Section 701.1 had some other meaning. I believe that that paragraph must be construed to apply only to an accused who is the parent of, or who has custody or control over, the child victim. Section 843, as the majority opinion recognizes, is subject to construction. We have held that when a statute is subject to construction, it is proper and a valuable aid to look to the title in interpreting the substance of the Taylor v. State, Okl.Cr., 377 P.2d 508; Brown v. State, Okl.Cr., 266 P.2d 988. Indeed, the constitution of this State is among those which contain a provision requiring that the subject of a legislative act be clearly expressed in its title. Okl. Const. Art. 5, Sec. 57. The title selected by the Legislature in this instance is some evidence that the opening words of Section 843, “Any parent or other person” were not intended to apply to the world in general. That title is: act.
“An Act relating to crimes and punishments; providing for a fine and/or imprisonment of any parent or other who shall willfully or maliciously beat or injure, torture, maim, or use unreasonable force, going beyond that which is necessary for the purpose of discipline and control; prescribing the circumstances to be considered; and declaring an emergency.” (Emphasis added)
Also, the application of the general rule of statutory construction that where general words follow an enumeration of persons or things in words of a particular and specific meaning, such general words are not to be construed in their broadest meaning, but are to be held to include only persons or things of the same kind or class as those specifically mentioned (the rule of ejusdem generis) to the phrase of Section 843 “Any parent or other person,” adds more weight to the view that those words are limited and do not apply to the world in general.
The application of a third basic rule of construction also tends to reinforce the view that the prohibition of Section 843 is limited to parents and those in the position of parents. That is the rule that to ascertain the intent of the Legislature, a court may look to each part of the act, and to other statutes on the same subject. Ex parte Barnett, 96 Okl.Cr. 254, 252 P.2d 496; Ex parte Overturff, 96 Okl.Cr. 262, 252 P.2d 508; Ex parte Higgs, 97 Okl.Cr. 338, 263 P.2d 752. In this regard the lan*586guage of Section 844, enacted at the same time as Section 843, is significant:
“Provided, however, that nothing contained in this Act shall prohibit any parent, teacher or other person from using ordinary force as a means of discipline, including but not limited to spanking, switching or paddling.”
In that related section, it is clear that the phrase “or other person” means one in a position to discipline the child.
If it does nothing more, the above discussion and application of rules of construction to Section 701.1 with its incorporation of Section 843 illustrates that in Section 701.1 the Legislature has created a doubtful statute, one in which the intention of its makers is less than clear. Criminal statutes must not be construed to extend their provisions to include acts or conduct not clearly within the prohibition of the statute. Matthews v. Powers, Okl.Cr., 425 P.2d 479; Simpson v. State, 267 P.2d 1008; Group v. State, 94 Okl.Cr, 401, 236 P.2d 997. To loosely construe a criminal statute creates the risk of making ex post facto law. With that consideration in mind, I would construe this highly doubtful and confusing paragraph of Section 701.1 strictly, to include only that class of persons clearly within its prohibition: that is, parents and those who are in the position of parents in that they have the duty to care for and control the child.
I would reverse and remand this case for a new trial on a charge of Second Degree Murder.
ORDER DENYING PETITION FOR REHEARING
Appellant was heretofore sentenced to suffer death for the offense of First Degree Murder in Case No. CRF-74-912 of the District Court, Oklahoma County, and upon appeal that sentence was thereafter affirmed in the above entitled cause on May 24, 1976.
In his Petition for Rehearing Appellant now advances three further propositions, as follows: (1) that the decision of this Court in Williams v. State, Okl.Cr., 542 P.2d 554 (1975), with respect to appellate review and modification of the death sentence under 21 O.S.Supp.1973, §§ 701.5 and 701.6, operated as an ex post facto law to alter the consequences of conviction for First Degree Murder to his disadvantage; (2) that our decision in Williams upon the validity of the foregoing appellate review provisions deprived him of an opportunity to establish that the death sentence was discriminatory or disproportionate under the decision of the United States Supreme Court in the consolidated cases of Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); and, (3) that invidious discrimination violative of Furman remains within the scheme for the enforcement of capital punishment within this State. However, we are of the opinion that the decision and rationale in Williams are fully disposi-tive of each of these propositions, and Appellant’s Petition for Rehearing is therefore DENIED.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Order of this Court staying execution of sentence herein pending appeal be VACATED, and the Clerk of this Court is directed to issue Mandate FORTHWITH.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the judgment and sentence herein appealed from be carried out by the electrocution of the Appellant, Frederick Hamilton Wishon, by the Warden of the State Penitentiary at McAlester, Oklahoma, on Wednesday, September 8,1976.