(dissenting).
I respectfully dissent from the majority opinion. From the evidence as developed by setting out the chain of events which transpired on the night of July 30, 1973, I would hold that there was a submissible case to the jury on the question of whether Powers sold the heroin in question to officers Harper and Hile. Further, by reason of the jury’s conviction of Powers under the instruction given, it must be assumed that Roberts was viewed as either acting for Harper and Hile or was being used by them as an aid in performing their official duties, and that any sale by Powers to Roberts was tantamount to a sale to Harper and Hile.
As the majority opinion notes, there is no authority in Kentucky on this specific issue. Insight into the particular problem presented here may be gained by considering United States v. Barcella, 432 F.2d 570, 571, 572 (1 Cir., 1970) (a case involving a prosecution for sale of narcotics brought against an intermediary used by a police officer to purchase heroin from a supplier). The court in discussing the defense forwarded by Barcella stated:
“The procuring agent theory is new to this circuit. So far as we can discover, it was initiated in United States v. Sawyer, 3 Cir., 1954, 210 F.2d 169, and now appears to be accepted in a majority of the circuits. [Citations omitted]. In essence the theory is that if the defendant, in procuring the drugs and delivering them to the recipient, acted solely as the agent of the recipient, and in no other capacity, then the delivery was the transfer by an agent to his principal of what already belonged to the principal * * (Emphasis added).
This language from Barcella, stating the majority view, indicates that an intermediary cottld be merely a conduit between the actual seller and the eventual real buyer. The court in Barcella, however, rejected the majority view in that case with its unique facts, choosing instead to allow the jury to determine the ultimate issue of whether there had been a “sale” and said at page 572 :
“ * * * [T]he jury could infer that he retained or received a portion of the sales price as a profit or commission from the supplier.
“ * * * By the same token, a jury might rationally consider that a defendant who was ready, able and willing to enter the transaction * * * was a seller, or an associate or agent of a seller, however much he might maintain that he was only accommodating the *235buyer. Such matters must be left to a jury’s good judgment." (Emphasis added).
Since there was no evidence whatever of any direct sale from Powers to officers Harper and Hile, the jury must necessarily have believed, as was their right under the evidence of this case, that Roberts was the agent of officers Harper and Hile and the sale and delivery of the drugs from Powers to Roberts was, in effect, a sale and delivery from Powers to officers Harper and Hile.