¶1(dissenting).
¶2I respectfully dissent to this decision.
¶3The facts of this case are very similar to the facts in Posey v. State, Okl.Cr., 507 P.2d 576. In Posey, this Court modified the judgment from a conviction for the illegal sale of marijuana, after former conviction of a felony, to that of illegal possession of marijuana, after former conviction of a felony, and affirmed the sentence imposed.
¶4In Posey v. State, supra, the following is found:
“We are therefore of the opinion, and so hold, that the evidence in the instant case presented a valid procuring agent defense to a charge of sale of hashish [marihuana].”
¶5In the Posey case the defendant was taken from place to place for the purpose of BUYING the illegal substance for the police officer. In the instant case, Officer McCall “asked defendant if he could get them some drugs, and defendant said that he could but that he. would have to meet *491them in about thirty minutes because he did not have any then.”
The majority opinion states further :
“McCall and the informer went to the residence that they were told to go to where they were met by the defendant. Defendant got into the car and directed them to a residence on south Troost where defendant attempted to make a purchase. The dealer was not home so they drove around for a short period of time in an attempt to find someone who had some drugs. No drugs were found, so defendant directed McCall to return to the residence on South Troost. Defendant went into the apartment, returned, and said the dealer had some ‘THC’. McCall asked him hozv much it would cost a ‘hit’ and defendant said $2.-00. The officer gave him $16.00, whereupon defendant purchased eight (8) foil packets which were later determined to contain Phencyclidine.” (Emphasis added).
¶6The summary of the critical facts in Po-sey v. State, supra, recite:
“In the instant case defendant went into the house with his co-defendant Mayes; defendant returned to the officer’s car and handed the officer the packet of hashish. From the time he received the packet until the time he went back outside the house to the car, defendant could have done anything he desired with the packet of hashish, but he delivered it to the officer. This constitutes sufficient possession to sustain a conviction.”
¶7As I view the facts in the instant case, Welling offered a valid procuring agent defense, as supported by the State’s testimony. Therefore, I believe the judgment and sentence in the instant case should be modified to the illegal possession of the illegal substance, and the sentence should be modified to one (1) year imprisonment.