Judgment reversed. All the Justices concur.

Edward D. Tolley, Donald T. Wells, Jr., for appellant.

The applicant for interlocutory appeal, Clinton Bankston, Jr., is under indictment in the Clarke Superior Court, wherein he is charged with the murders of five persons on two separate dates. He was 15 years of age at the time of the alleged murders of two of the persons, and 16 years of age at the time of the alleged murders of the other three. The state has filed notice of its intent to seek the death penalty, and applicant has filed a pretrial motion to bar imposition of the death penalty on both constitutional and statutory grounds. The statutory provision in issue is the last sentence of OCGA 17-9-3, which provides in full:

In all capital cases, other than those of homicide, when the verdict is "guilty," with a recommendation for mercy, it shall be legal and shall mean imprisonment for life. When the verdict is "guilty," without a recommendation for mercy, it shall be legal and shall mean that the convicted person shall be sentenced to death. When it is shown that a person convicted of a capital offense without a recommendation for 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 supplied.]

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The history of OCGA 17-9-3, and the evolution of constitutional law with respect to imposition of the death penalty, complicate the question of statutory construction in this case.

OCGA 17-9-3 is a successor statute to Code Ann. 27-2302, which dealt with capital offenses other than murder. The prohibition against imposing the death penalty upon a person, who had not reached his seventeenth birthday at the time of the commission of the offense, was added to Code Ann. 27-2302 in Section 2 of a 1963 Act. Ga. L. 1963, p. 122 et seq. Hawes v. State, 17-9-3.

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Based on the language of the statute and its history, we realize that an argument can be made to the effect that the legislature did not intend the prohibition against executing persons under the age of seventeen years to apply to cases of homicide. However, by so holding, we would be ascribing to the legislature, in its passage of OCGA 17-9-3, an intention to enact a statute which was at the time of its enactment and which is now a legal nullity, by reason of Coker. In addition, the third sentence of OCGA 17-9-3, by its terms, applies to "capital offense[s]," and not, as stated in the first paragraph, "capital cases, other than those of homicide." Under these circumstances, our interpretation of the statute is that the legislature intended to create a general prohibition against the execution of persons who had not reached their seventeenth birthday at the time of the commission of the offense. See Legare v. State, 250 Ga. 875 (4) (302 SE2d 351) (1983).

Such construction of the statute is also consonant with firmly established legal principles governing the construction and interpretation of penal statutes. "It has always been the law that criminal statutes must be strictly construed against the state. McAllister v. State, 239 Ga. 3 (1) (235 SE2d 509) (1977). Furthermore, where a statute imposing the penalty for commission of a criminal offense is capable of two constructions, such statute should be construed as imposing the lesser penalty. Knight v. State, 243 Ga. 770, 775 (2) (257 SE2d 182) (1979); Gee v. State, 225 Ga. 669 (171 SE2d 291) (1969).

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, Michael J. Bowers, Attorney General, for appellee.