On Motion for Rehearing.
On motion for rehearing, counsel for appellant alleges (1) “this Court has overlooked a material fact in the record, specifically that the substance in question was not in fact methaqualone, but merely an uncontrolled and legal substance,” and (2) “construe the dual intent requirement of a charge of conspiracy to be merely a gloss of explanation offered by treatise writers.”
First, as stated in the original opinion: “A chemical analysis of the purported Quaaludes showed them to be a decongestant.” *374(Supra.) Secondly, appellant contended in its brief that the evidence failed to prove “the specific intent to distribute and deliver methaqualone. . . .” (Emphasis supplied.) We quoted the statute on general conspiracy, in effect at the time of these alleged offenses, Code Ann. § 26-3201 (now OCGA § 16-4-8; but see also OCGA § 16-13-33), and observed that the statutory elements of the offense of conspiracy did not include a specific intent. However, we noted the ease with which treatise writers added requirements for proof of two kinds of intent in proving a conspiracy. There was no need to reach this issue as the opinion pointed out that the trial court charged the jury on the necessity for them to find “[a] specific intent to commit the crime charged in the indictment. . . .” Since the jury found the evidence supported a finding of specific intent to commit the crime charged, no useful purpose is served by a discussion of whether the jury was required to reach that element.
On rehearing, appellant again stresses the lack of proof of any specific intent on his part to commit the offense of distribution of methaqualone, but “merely an uncontrolled and legal substance.” Appellant ignores Code Ann. § 79A-811 (i) (now OCGA § 16-13-30 (i)), which prohibits possession, control, delivery, distribution or sale of a “counterfeit substance.” “Counterfeit substance” is defined as “a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number or device, or any likeness thereof, of a manufacturer. . . .” Code Ann. § 79A-802 (f) (now OCGA § 16-13-21 (6)). Hence, the substance transferred was not a “legal substance” because Barnes advised the undercover officer the substance was methaqualone and the officer observed the marking on each pill of “ ‘Lemmon 714,’ which is common to methaqualone tablets.”
Appellant’s position on appeal is that (1) he did not participate in the conspiracy, and (2) even if he did, the act charged was not proved because the alleged illegal drug distributed was a “legal substance,” a decongestant (60 of the 15,000 pills were aspirin). Pretermitting the issue of whether it is legally permissible for an appellant to rely upon inconsistent defenses (see Gregoroff v. State, 248 Ga. 667, 670, 671 (285 SE2d 537)), we have found the evidence sufficient to establish the offense alleged.
Co-conspirators Barnes and Holbrook had entered pleas of guilty to the charge of conspiracy to distribute and deliver methaqualone (Quaalude). Holbrook testified he witnessed a conversation between Skinner and Barnes, in Barnes’ house, on the day this transaction occurred, in which “Barnes and Skinner were preparing to do a drug deal . . . Quaaludes. ...” Later that day, Holbrook and Barnes obtained the drugs from Skinner, and attempted to transfer them to the undercover police officer. Barnes testified that he “knew what was in *375the trunk of the car . . . what was supposed to be in the trunk of the car. . . .” Barnes assured the undercover officer the pills were “very high quality Quaaludes of a “better quality” than the samples he had previously given him. The pills each carried the methaqualone trademark “Lemmon 714.” None of the co-conspirators testified at trial that they did not believe the drugs to be methaqualone. After all three conspirators were arrested and placed in jail, Skinner is said to have told Holbrook that “the drugs . . . they wasn’t any good.”
Decided March 13, 1987 Rehearing denied March 30, 1987 Bobby Lee Cook, Sr., William T. Cox, Jr., A. Kristina Cook Connelly, L. Branch S. Connelly, for appellant. Thomas J. Charron, District Attorney, James T. Martin, Assistant District Attorney, for appellee.The question of the existence of a conspiracy is for the jury. Hurt v. State, 239 Ga. 665, 673 (238 SE2d 542). The crux of a conspiracy “is the corrupt agreement between two or more persons to commit an act prohibited by law.” Rollins v. State, 215 Ga. 437, 439 (111 SE2d 63). The jury was authorized by the evidence to find that Barnes and Holbrook believed they were participating in an unlawful agreement for the sale of methaqualone. All participants in a conspiracy are criminally responsible for the acts of each, committed in the execution of the plan. White v. State, 255 Ga. 210 (1) (336 SE2d 777). Further, in a conspiracy “ ‘[t]he intent of the actual [actor] is imputable to his coconspirators.’ ” Burke, supra at 513. Hence, when viewed in the light favorable to the verdict, the evidence was sufficient to enable any rational trier of fact to find the existence of the offense of conspiracy to distribute methaqualone, between Barnes and Holbrook, beyond a reasonable doubt (Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560)), and such intent is imputable to their overt conspirator, according to Holbrook, the appellant Skinner.
Motion for rehearing denied.