I dissent.
The sole issue in this case is whether the trial court erred in denying defendant’s request for a “procuring agent” instruction. See PIK Crim. 2d 54.14-A.
At trial, defendant took the stand and denied any involvement whatever in the drug-sale transaction. He contends that he was nevertheless entitled to a procuring agent instruction, because the evidence brought out by the State showed that he was present at the alleged sale and disclosed facts which would support a finding that he acted not as seller, but as procuring agent for the buyer in the transaction.
Given the state of facts herein, the precise issue before us can be stated with greater particularity: Is a defendant who is charged with sale of a controlled substance entitled to have the jury instructed on the theory of defense that he acted only as procuring agent for the purchaser, when substantial evidence presented by the State would support a jury conclusion relative to that theory, despite the fact that defendant denies any involvement in the alleged transaction?
In its opinion, the majority has held that defendant herein was not entitled to any such instruction, because of his testimony denying any involvement whatever in the crime with which he was charged. The majority relies primarily on State v. Einhorn, 213 Kan. 271, 515 P.2d 1036 (1973), where the court, at page 273, stated:
“A defendant who refuses to admit any involvement in an incident out of which a criminal charge arises cannot use entrapment as a defense. A defendant who admits the acts charged by the state, but claims the acts fail to support a criminal charge, may raise entrapment as an additional defense. In situations where the defendant admits some involvement, but fails to admit all the facts alleged by the state, he may or may not be entitled to claim entrapment, depending on the degree of involvement he admits. Admission of substantial involvement would tend to permit the defense, while slight and limited admission would tend to deny the defense.”
Einhorn pertains specifically to the defense of entrapment. The majority opinion extends the rule of Einhorn to include those situations where the procuring agent theory is asserted by defendant.
It is my conviction that the rule of Einhorn should not be and is not dispositive of the issue at bar, and it is the majority *719opinion’s application of that rule to this case that causes me to dissent. I offer several reasons for my position.
First, Einhorn and the case at bar can be distinguished from one another on the basis of factual differences between the two. In Einhorn, the appellant admitted a limited, noncriminal involvement in the transaction out of which the charges against him arose. His testimony, if believed, would have supported a conclusion by the jury that he had been entrapped into any crime he might have committed. On this state of facts, our Supreme Court reversed appellant’s conviction and granted him a new trial, holding that it was error for the trial court to refuse the requested instruction on entrapment.
In sharp contrast, defendant herein denied any and all involvement in the alleged drug deal. There was, however, positive testimony from one of the State’s witnesses from which the jury could have concluded that defendant did not sell marijuana to that witness, but merely acted as a procuring agent for that witness in his purchase of marijuana. This is a markedly different factual situation than that which confronted the court in Einhorn, and it presents an issue which was not before the court in Einhorn.
I direct the reader’s attention to the first full sentence of ¶1 of the syllabus from Einhorn. An argument can be made that the Einhorn court intended this to be a statement of a rule without exception — that is, that a defendant who denies involvement in a crime can never claim entrapment, regardless of what proof the State’s case may provide relative to that defense. I would not hold to such an interpretation of that language, because that specific issue was not presented by the facts in Einhorn, and therefore that specific issue was not decided by the court.
The key fact upon which the decision in Einhorn turned was the appellant’s admission of limited involvement in the crime. It was this admission that entitled him to an instruction on entrapment. The facts in Einhorn are not analogous to the facts in this case; appellant in Einhorn did not deny involvement in the crime, but relied on the State’s evidence to support an entrapment argument.
It is my opinion that the language used in the first sentence of ¶ 1 of the syllabus in Einhorn, and the corresponding portion of the opinion, being unnecessary to the court’s determination of the limited issue before it, was not the ratio decidendi in that *720case. I believe that a strong argument can be made, and supported by law, that such language is mere dicta, and as such the import and effect of such language should be extended no further than its application to the particular facts in Einhorn. I am not dissuaded from my assessment of this language by the fact that it appears as part of the syllabus by the court. K.S.A. 60-2106(fo) directs that:
“Each formal opinion shall contain a syllabus of the points of law decided, which shall be confined to those questions necessarily arising from the facts in the case.”
Cf K.S.A. 20-203.
The point of law expressed in the language to which I refer did not arise from the facts in the Einhorn case, nor was an issue pertinent to that point of law determined by the court. Further argument could be made as to this point; however, since I hereinafter set out a specific reason clearly differentiating between the entrapment and procuring agent theories of defense, I do not feel it necessary to pursue the specific “dicta” argument to any greater extent. Such differentiation makes it clear that regardless of whether such language was dicta or not, it is not binding on us in a case such as the one at bar.
As I have stated above, I do not subscribe to a strict, no-exceptions interpretation of the rule from Einhorn. The reasoning behind the general rule in Einhorn is clear and logical — a defendant must necessarily admit that he committed the crime charged if he is going to contend that he was entrapped into doing so. See State v. Farmer, 212 Kan. 163, 167, 510 P.2d 180 (1973); and State v. Amodei, 222 Kan. 140, 563 P.2d 440 (1977).
It is noted that in State v. Amodei, the court states at Syl. ¶ 2, as follows: “The defense of entrapment is generally not available to a defendant who denies that he committed the offense charged.” (Emphasis added.) Furthermore, Amodei, at page 142, contains the following language: “As to Count I (sale of heroin) defendant denied any part in the incident and the record disclosed no competent evidence to justify giving an instruction on entrapment. (See State v. Farmer, supra, and State v. Fitzgibbon, 211 Kan. 553, 557, 507 P.2d 313.)” (Emphasis added.)
The logic underlying the reasoning in Einhorn tends to dissolve, though, when the State’s case-in-chief injects substantial evidence of entrapment into the case. In such a case the issue of *721entrapment has been raised, by the State’s evidence, notwithstanding the defendant’s adamant denial of involvement. In recognition of this breakdown of the rationale underlying it, some courts have carved out a limited exception to the general rule of Einhorn. These cases hold that a defendant may argue entrapment if the State’s evidence supports that theory, even though such argument is inconsistent with the defendant’s own denial of involvement. See State v. Knight, _ W. Va __, 230 S.E.2d 732 (1976); and Sears v. United States, 343 F.2d 139 (5th Cir. 1965).
The Kansas courts have yet to specifically address the question resolved in Knight and Sears, where the defense of entrapment is involved. However, where self-defense has been argued, based completely on the State’s evidence, and denial of involvement is the only defense the accused has supported with evidence, the courts have allowed the defendant to assert both of these two inconsistent defenses.
“There is no requirement a defendant must rely upon his own testimony to merit a self-defense instruction. A defendant is entitled to a self-defense instruction if there is any evidence from which a jury could conclude that, despite his denial, a defendant committed an act but did so in self-defense.” State v. Heiskell, 8 Kan. App. 2d 667, Syl. ¶ 6, 666 P.2d 207 (1983).
Cf. State v. Jackett, 81 Kan. 168, 105 Pac. 689 (1909); State v. Smith, 161 Kan. 230, 167 P.2d 594 (1946); State v. Sullivan & Sullivan, 224 Kan. 110, Syl. ¶ 10, 578 P.2d 1108 (1978); State v. Hargis, 5 Kan. App. 2d 608, 609, 620 P.2d 1181 (1980), rev. denied 229 Kan. 671 (1981) (“any evidence whatsoever”). The Heiskell court further stated:
“It is the function of the appellate court to determine whether the record discloses any evidence which, considered in the light most favorable to defendant, would have justified giving the requested instruction. State v. Hargis, 5 Kan. App. 2d at 609. See also State v. Kleber, 2 Kan. App. 2d 115, 116-17, 575 P.2d 900, rev. denied 225 Kan. 846 (1978).” 8 Kan. App. 2d at 673.
A limited exception to the Einhorn rule would be more in keeping with the universal tenet that a criminal defendant is entitled to an instruction on any theory of defense which is supported by any evidence whatsoever. State v. Seely, 212 Kan. 195, 197, 510 P.2d 115 (1973). That the Einhorn court intended their rule to be in conformity with this general proposition is *722plainly demonstrated by the court’s referral to that very proposition in its opinion:
“It is the duty of the trial court to instruct the jury on the law applicable to the theory of both the prosecution and the accused insofar as they are supported by any competent evidence and are germane to the issues raised on the charge in the information. (State v. Runnels, 203 Kan. 513, 456 P.2d 16 [Syl. ¶ 1]; State v. Hamrick, 206 Kan. 543, 479 P.2d 854; State v. Ringler, 194 Kan. 133, 397 P.2d 390; State v. Barnes, 164 Kan. 424, 190 P.2d 193; State v. Severns, 158 Kan. 453, 148 P.2d 488.)” State v. Einhorn, 213 Kan. at 274.
Such an exception would also be in accord with the statement following from Corpus Juris Secundum:
“While there is some authority to the contrary, it is generally held that inconsistent defenses may be interposed in a criminal case; and this is especially true when the state proves them.
“Accordingly, the fact that one defense is on the theory that accused did not commit the offense, as where he relies on alibi, does not deprive him of the right to avail himself of other defenses . . . .” 22 C.J.S., Criminal Law § 54, p. 193.
The logic of the exception announced in State v. Knight and Sears v. United States is strongly persuasive, particularly when one stops to ponder the possible injustice which might occur were the Einhorn rule extended.
The second reason why I feel Einhorn is not controlling herein hinges on the fact that the defense of entrapment is conceptually different from the procuring agent theory. The difference between these two principles dictates distinctive treatment of each from the other. Thus, assuming without conceding that the strict rule of Einhorn is always, and without exception, applicable when entrapment is involved, that same rule should not be extended to also encompass those cases where the procuring agent theory is involved.
Entrapment is an affirmative defense. It is in the nature of a confession and avoidance — that is, customarily the defendant raises entrapment by admitting the commission of the very crime charged, but seeks to avoid liability for his actions by claiming that he had no predisposition to commit the crime, but was induced to commit it by law enforcement officers. Entrapment is also a complete defense; a finding by the jury that a defendant was entrapped totally excuses his admitted criminal behavior.
The procuring agent situation, on the other hand, is not analogous to that of entrapment. Where the procuring agent theory is *723argued, the defendant never admits to the commission of the crime charged. Quite the contrary, by interposing a procuring agent argument in a drug sale case, a defendant is categorically denying that he was a seller of drugs, but is instead insisting that he was merely an agent of the purchaser. Thus, it seems reasonable that a defendant needs to admit far less, if any, involvement in the incident to raise the procuring agent theory than he does to bring entrapment into issue.
Stated another way: In a case where defendant is charged with the sale of a controlled substance, when claiming entrapment, it is necessary for the defendant to admit the commission of the offense; whereas in raising the procuring agent defense he must necessarily deny committing the offense with which he is charged.
I would hold that in the case at bar the trial court erred when it refused to instruct the jury on the procuring agent theory, because the evidence of the State (as summarized in the majority opinion) was such that the jury could have found defendant not guilty of any crime based on the procuring agent theory.
There is a third reason why I would not apply the rule of Einhorn to this case. In an adversary system of justice, it is imperative that each party operate under the same rules.
I refer the reader to the case of State v. Blue, 225 Kan. 576, 592 P.2d 897 (1979). The gist of the holding in that case is that a criminal defendant who chooses to present a defense thereby waives any error in the trial court’s denial of his motion for acquittal, made at the close of the State’s case and based on insufficiency of evidence. If the motion for acquittal is renewed at the close of defendant’s case, the court will consider all the evidence, that of the State and that of defendant, in ruling on the renewed motion. Therefore, if the State’s case-in-chief was in fact deficient in some manner, but the deficiency is cured by proof provided by the defendant, then the case can go to the jury. The court justified this holding with the following language:
“The defendant should not be acquitted on the ground of insufficiency of the evidence if the evidence is in fact sufficient.” 225 Kan. at 578.
The effect of the holding in State v. Blue is to allow an insufficient case-in-chief of the prosecution to be augmented by the evidence supplied by the defendant, and to permit the defendant to be convicted on the basis of this augmented case. In *724other words, the State is allowed to use all the evidence presented by both parties in the case to prove the charges against the accused. Where the converse is true, i.e., where the State presents exculpatory evidence, why should not fundamental fairness dictate that the same general principle be applied?
It is elementary that all criminal defendants are presumed to be innocent until proven guilty. Throughout the trial, the prosecution must shoulder the burden of proving every essential element of the crime; this proof must convince the jury, beyond a reasonable doubt, of the defendant’s guilt. Under the rule of State v. Blue, even if the State fails to fulfill this primary duty, its efforts may be bolstered by the defendant’s evidence. If the prosecution is allowed to use all the evidence in the case, its own and that of the defendant, to rebut the presumption of innocence and prove its charge, then why should not the defendant be permitted the same latitude in his defense? I submit that fundamental fairness demands that a defendant be allowed to argue in favor of a theory of defense (and be afforded an instruction on such theory) which is supported by the State’s evidence, even though his own evidence does not support, and even contradicts, that theory.
The following summation of my reasons for dissent is respectfully submitted:
1. Einhorn is factually distinguishable from the case at bar; the issue in the case at bar was not decided by the court in Einhorn. Also the result obtained in Einhorn was just, and the defendant therein was accorded instructions on the law relative to all the evidence in that case.
2. The defense of entrapment and that of procuring agent are conceptually different from one another. In an entrapment case the defendant admits the commission of the offense with which he is charged, while in a procuring agent case the defendant denies commission of the offense. Cases where such theories of defense are raised are thus totally different from one another, and a case dealing with the former should not be considered dispositive authority in a case dealing with the latter.
3. In an adversary system of justice, fundamental fairness requires that all rules of procedure must apply with equal *725force to both the prosecution and the defense. The rule of State v. Blue effectively allows the State to use evidence supplied by the defendant in proving the charge against him. Fairness dictates that the defendant should be allowed the concomitant privilege of employing in his defense evidence supplied by the State. Thus, the court should give proper jury instructions in the law concerning all those legal theories which find any support in the evidence, whether presented by the defendant or the State.