concurring specially to the judgment reversing the sentence of death.
In 1963 the legislature decided that offenders under the age of seventeen should not be executed for their offense. Ga. L. 1963, p. 122. The Act which established this law was passed for this purpose and no other, and in so doing the legislature established the policy of this state *338beyond question.
This bill was in two sections. Section 1 amended Code § 26-1005, which dealt only with murder.1 Section 2 amended Code § 27-2302, which at that time dealt with all other capital offenses.2 The reason for two sections was the existence of two Code sections dealing with capital offenses; no distinction between types of capital offenses was created by this Act, and none was intended.
*339Section 1 of this Act, and the rest of Code § 26-1005 were repealed in 1968 as part of the comprehensive revision of the Criminal Code. There is no indication that this action was intended to change the policy of the state with regard to executions of children. Indeed, I am convinced that this was not intended.
The Harrison Company in 1968 erroneously concluded that Section 2 of the 1963 Act was also repealed, and returned Code Ann. § 27-2302 to its original form. This error went undetected until after the judge sentencing act was passed in 1974, again amending Code § 27-2302. Ga. L. 1974, p. 352. At this point the error was compounded, for the Code Annotated language was used in the redrafting of that section. Since the limitation on the execution of children was not in the Code Annotated, it was left out of the revision when this section was restated. This was not intended to change the law in this regard. See Report of the Governor’s Commission on Judicial Processes, pp. 7-9 (1971).
Now the state argues that there is no law restricting executions of children over 12 years old.3 Section 1, it is argued, was the only section dealing with murder, and it was expressly repealed. Section 2, it is argued, did not cover the crime of murder because it amended a section which had not applied to murder before. Moreover, the state says this section was impliedly repealed by the 1974 revision. See Osborne v. Ridge View Associates, 238 Ga. 377 (233 SE2d 342) (1977).
*340I recognize that the state’s technical, legal argument can be defended as a matter of legal logic. But this argument is devoid of policy, and contravenes the intention of the legislature.
I prefer an interpretation of these events which would effectuate the policy choice made in 1963, which I believe is still the law in Georgia. The language of Section 2 of the 1963 Act is not limited to capital offenses other than homicide, and the Act as a whole was not intended to create different rules for different offenses. I would interpret this language as applying to all capital offenses, and thus Code § 27-2302 as amended would apply to bar an execution in this case.
As for the implied repeal in 1974, I recognize the validity of the Osborne rule, but as I construe that rule, it should not be applied to defeat the legislative intent. Rules of statutory construction cannot be mechanically applied, rather they should be used to further the intent of the legislature. See Frankfurter, Some Reflections on the Reading of Statutes, 47 Col. L. Rev. 527 (1947). I do not find an implied repeal of this law.
The state’s argument leads to the absurd result that a child of 12 will not be guilty of any criminal offense when he commits a murder, yet if that same child waits until he is 13 he can be executed for the offense. This contrast in penalties is too great for me to believe that the legislature intended this result. In 1963 a contrary policy was unmistakably made the law, and given two legal arguments as to the effect of the events subsequent to that date, I chose the one which prohibits the state from killing children over the one which allows it.
Code § 26-1005 read as follows before the 1963 amendment: "26-1005. The punishment for persons convicted of murder shall be death, but may be confinement in the penitentiary for life in the following cases: If the jury trying the case shall so recommend, or if the conviction is founded solely on circumstantial testimony the presiding judge may sentence to confinement in the penitentiary for life. In the former case it is not discretionary with the judge; in the latter it is.
"Whenever a jury, in a capital case of homicide, shall find a verdict of guilty, with a recommendation of mercy, instead of a recommendation of imprisonment for life, in cases where by law the jury may make such recommendation, such verdict shall be held to mean imprisonment for life. If, in any capital case of homicide, the jury shall make any recommendation, where not authorized by law to make a recommendation of imprisonment for life, the verdict shall be construed as if made without any recommendation.”
This was changed by adding the following at the end of the first paragraph:
"WTien it is shown that a person convicted of murder had not reached his seventeenth birthday at the time of the commission of the offense, the punishment of such person shall not be death but shall be imprisonment for life.” Ga. L. 1963, p. 122.
Code § 27-2302 read as follows before the 1963 amendment: "27-2302. In all capital cases, other than those of homicide, when the verdict is guilty, with a recommendation of mercy, it shall be legal and shall mean *339imprisonment for life.”
The amendment added the following: "When the verdict is guilty without a recommendation to mercy it shall be legal and shall mean that the convicted person shall be sentenced to death. However, when it is shown that a person convicted of a capital offense without a recommendation to mercy had not reached his seventeenth birthday at the time of the commission of the offense the punishment of such person shall not be death but shall be imprisonment for life.” (Emphasis added). Ga. L. 1963, pp. 122, 1.23.
Thirteen is the age of criminal responsibility. Code § 26-701.