dissenting.
I must dissent from the affirmance of the conviction as to Counts 2 and 3 of the indictment, and Divisions 1 and 2 of the opinion.
The state has the initial burden of proving that the drugs, the sale of which is charged in the indictment, are narcotics. This may be done in a number of ways, including a showing that the drug has been so classified under the Federal laws, or that it has been classified by the Georgia State Board of Pharmacy as addictive. These *688two classifications are exceedingly broad and doubtless include almost every drug known to medical science to be what we call a narcotic in common parlance. Neither of these methods of proof was used as to oxycodone or methadone. The third method of proof is to offer testimony that it comes from opium (that is, that it is a compound, manufacture, salt, derivative, mixture or preparation made from opium), opium being a substance obtained from a certain variety of poppy. As I read the evidence, the state failed in this endeavor.
Let us take first the methadone. Does methadone "come from” opium; that is, is any chemical constituent of methadone derived in the first instance from the poppy plant? We know as a matter of fact that it is not. The expert testified that it is a "synthetic.” One of the dictionary definitions of synthetic not quoted in the majority opinion, but applicable here, is "produced from artificial processes.” We know as a matter of fact that methadone is synthetically (artificially) produced in the laboratory and does not come from opium. Regardless of the closeness of the chemical formulae of these substances, it simply cannot be said that methadone comes under either Code Ann. § 79A-802 (12) or (14). Furthermore, the so-called expert whose testimony was that methadone is "synthetically produced trying similar properties of a narcotic without being habit-forming” by this testimony admitted the drug was not an opium derivative and contradicted his own testimony, for how can any substance whatever be addictive if it is not habit-forming?
Drugs are dangerous, and we have a natural bias toward ridding our state of the evils engendered by drug peddling. But this result can only be accomplished by offering the readily available proof of narcotic content at the trial level; not by countenancing the use of evidence which fails of its purpose.
In regard to the oxycodone, we have the same problem. It is not shown to be a drug classified as a narcotic under either Federal or State law, so it has to come under Code Ann. § 79A-802 (14) to be a narcotic drug by definition. That is, it must be one of certain substances, including opium, or a substance "neither chemically nor physically distinguishable from” opium. *689There is no testimony at all that the drug meets these qualifications. Instead, there is testimony that it is "a synthesis” from the opiate codeine. There is no way of knowing whether this makes it a narcotic or not, and there is no testimony that it is in fact a narcotic. We are cited to the California case of Rivas v. United States, 368 F2d 703, where it appears that prior to 1965 the drug could be sold without a narcotics prescription but that it now requires one. We are also aware that the new Georgia Controlled Substances Act, Ga. L. 1974, pp. 221, 225 includes within the definition of "manufacture” the conversion of a controlled substance "independently by means of chemical synthesis,” but the law in effect at the time of this offense did not do so. The classification is important because of the fact that some drugs are far more addictive than others, for which reason the Narcotics Act, the Dangerous Drugs Act, the Drug Abuse Control Law, and now the Controlled Substances Act make distinctions between drugs and the penal consequences of selling them which laymen cannot make. For this reason I feel that the threshold evidence necessary for conviction should be demanded by the courts and procured by the prosecutors, in the interest of consistency of drug enforcement.
I am authorized to state that Judge Quillian concurs in this dissent.