¶1ON STATE’S MOTION FOR REHEARING
¶2By brief and oral argument counsel for the state urges that, in view of the definition of “sale” in Section 1 (10) of the Uniform Narcotic Drugs Act (art. 725b Vernon’s Ann.P.C.) the Durham decision is unsound and should be overruled, the definition being: “ ‘Sale’ includes barter, exchange, or gift, or offer therefor, and, each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee.”
¶3The state cites the case of People v. Shannon, 15 Ill.2d 494, 155 N.E.2d 578, 579, wherein the Supreme Court of Illinois expressed the opinion that such definition “shows a legislative intent that the act of a person whether as agent, either for the seller or the purchaser, or as a go-between in such a transaction constitutes a sale.”
¶4People v. Shannon has been cited with approval in other Illinois cases and by the New Jersey Supreme Court in State v. Weissman, 73 N.J.Super. 274, 179 A.2d 748, 93 A.L.R.2d 1001.
¶5On the other hand, the holding of this Court in Durham v. State is supported by the following decisions of the courts of the State of New York:
¶6People v. Lindsey, 16 A.D.2d 805, 228 N.Y.S.2d 427, affirmed 12 N.Y.2d 958, 238 N.Y.S.2d 956, 189 N.E.2d 492; People v. Branch, 13 A.D.2d 714, 213 N.Y.S.2d 535; People v. Buster, 286 App.Div. 1141, 145 N.Y.S.2d 437; and the recent case of People v. Fortes, 24 A.D.2d 428, 260 N.Y.S.2d 716 (June 1965) where it was held that it was error not to charge as requested and submit to the jury as an issue of fact whether defendant sold the heroin to the complaining witness or was acting at her request and solely as her agent in acquiring the heroin.
¶7The New York cases cited hold that one who acts solely as agent of the buyer cannot be convicted of crime of selling narcotics, and where it clearly appeared that the defendant in the purchase of narcotics acted as agent for a police officer who had disguised his identity: is in no way associated with the seller in a common scheme or plan, and received no financial profit from the single sale, he is not guilty of the offense of selling narcotic drugs.
¶8All the cases above cited are from courts of states that have adopted the Uniform Narcotic Drugs Act which contains the above quoted definition of “sale”.
¶9Though the Illinois Courts have expressed such view, we have found no case where an agent of the purchasing officer who was in no way connected with the seller, and received ■ no profit, has been finally convicted of the offense of sale of a narcotic drug to said officer.
¶10We think that the New York cases and the Durham case are correct and reject the view that one who acts only as an agent, servant or employee of a law enforcement officer in the purchase of narcotic drugs for evidence purposes, and who is in no way connected or associated with the seller and receives no financial profit from the single sale, can be guilty of selling the narcotic drugs when the law enforcement officer is not.
¶11See United States v. Sawyer, 3 Cir., 210 F.2d 169; United States v. Moses, 3 Cir., 220 F.2d 166.
¶12*879Cases from Sth Circuit Court are to the effect that in the Federal Courts the question is “whether the accused acted as a participant in the sale on behalf of the buyer or on behalf of the seller.” Jackson v. United States, 5 Cir., 311 F.2d 686; Henderson v. United States, 5 Cir., 261 F.2d 909; Coronado v. United States, 5 Cir., 266 F.2d 719.
¶13We are unable to distinguish this case from Durham v. State, supra.
¶14People v. Fortes, supra, is further authority for our holding on original submission that the trial court erred in failing to submit to the jury the defense raised by appellant’s testimony.
¶15The state’s motion for rehearing is overruled.