dissenting.
I respectfully dissent, as I believe the evidence is insufficient as a matter of law to sustain Wood’s convictions.
Wood met Pruitt at a party in late August or early September, 1971, and they developed a friendship. Through Pruitt, Wood became acquainted with Rector and two other undercover officers, all of whom shared an apartment with Pruitt. The defendant frequented the apartment and, for a period of ten days to two weeks in October, actually resided there.
There is little dispute as to the facts surrounding the two transactions which gave rise to Wood’s convictions. In one instance, the defendant saw Pruitt at the Cavalier Restaurant in Lynchburg and asked if he had seen an illicit drug dealer, Greg Brown, known to both of them. Officer Pruitt indicated that he had not but suggested where Brown might be found. The defendant then asked Pruitt if he wanted to accompany him in search of Brown to buy some heroin, and Pruitt agreed. They located Brown who in turn unearthed “some dude” who was selling “nickel” or five dollar bags of heroin. As Pruitt reached for his wallet to pay for one bag, the defendant handed Brown some money with instructions to purchase two bags *101for them. The defendant told Pruitt, who did not have the correct change, to reimburse him when they returned to the Cavalier. They remained in the car until Brown reappeared and delivered two foil-wrapped packets of heroin to the defendant who immediately passed one to Pruitt. After they returned to the Cavalier, Pruitt obtained change and repaid Wood.
On October 22, 1971, Wood came by the undercover officers’ apartment for a visit. After he had been there about an hour, he suggested to Officer Rector that they go to the Lynchburg Community College and “score some grass”. It was agreed that they would split an ounce of marijuana, and that Rector would lend Wood the latter’s half of the fifteen dollar purchase price. Rector turned over the purchase money to Wood but accompanied him on the venture. When they located a source, Bill Mace, at the college, the defendant paid him and received the “baggie” of marijuana. Upon returning to Rector’s apartment, Wood divided the marijuana with Rector and left.
On this evidence, Wood was convicted of two counts of unlawful distribution of a controlled drug. Relying on the broad language of the statute the majority would affirm the convictions.
In the majority opinion the “procuring agent” rule, widely followed in drug cases by the federal courts, as well as by several state courts, is rejected. In my view consideration of the rule is unnecessary in this case as the evidence fails to show that Wood made any distribution of the drugs within the meaning of the statute.
The evidence conclusively shows that the defendant engaged in two joint purchases of controlled drugs. In the course of each joint venture, during which both purchasers were present, Wood paid over the purchase money and incidentally handled his companion’s share of the controlled drug. Our drug laws were not intended to be stretched so far as to punish as a “distributor” anyone who, without legal authorization, fleetingly touches a controlled drug of another. The only distribution here was made by the unidentified “dude” and by Brown, who consummated the sale of heroin, and by Mace, who sold and delivered the marijuana. Cf. Wood v. Commonwealth, 213 Va. 363, 367, 192 S.E.2d 762, 765 (1972).
Drug legislation in Virginia has recently undergone marked change. In 1970 the General Assembly replaced the Uniform Narcotic Drug Act1 with the Drug Control Act,2 introducing a new legislative *102scheme. The legislature undoubtedly intended to punish the dealer severely but to show leniency toward the youthful user. See Bonnie & Whitebread, The Forbidden Fruit and the Tree of Knowledge, 57 Va. L. Rev. 971, 1158 (1970).
The provision under which Wood was convicted declared it unlawful for any person “knowingly or intentionally ... [t]o distribute, or to possess with intent to distribute, a controlled drug . . . .” Code § 54-524.101 (a) (1) (Cum. Supp. 1970). “Distribute” was then and is now defined as “deliver”, which in turn is defined as “the actual, constructive, or attempted transfer of a controlled drug, whether or not there exists an agency relationship”. Code §§ 54-524.2(11), (8). A “distributor” is any person who “delivers a controlled drug” or who engages “in the business of distributing, supplying, selling or otherwise disposing of drugs or medicines to any person who is not the ultimate user or consumer”. Id. §§ (11), (32).
Read in the context of the law in 1971, it seems clear that the legislature aimed its criminal penalties for distribution primarily at unlicensed and unlawful dealers and “pushers”, operating for profit. While the law was meant to punish an unauthorized seller of drugs for even an occasional sale, it was not intended to reach a mere gratuitous handler of another’s purchase. This conclusion is supported by the trend of subsequent legislation which has retreated from punishing an “accommodation” seller as harshly as a seller for profit.
In 1972 Code § 54-524.101 was repealed and replaced by a provision which declared it “unlawful for any person to manufacture, sell, give, distribute or possess with intent to manufacture, sell, give or distribute a controlled substance”. (Emphasis added.) Code § 54-524.101:1 (Cum. Supp. 1972). But the new section provided a lesser penalty for conviction if the person gave or distributed a Schedule I, II or III drug only as an accommodation to another individual and not with intent to profit thereby. Id. § (á) .3
In 1973 § 54-524.101:1 was further amended to provide that a person who gave or distributed marijuana only as an accommodation to another shall be punished, at a maximum, by confinement in jail for twelve months and a fine of not more than $1,000. Acts of Assembly 1973, ch. 479.
*103Two important cumulative changes may be noted since the Drug Control Act was enacted in 1970. First, the law has been broadened to include an “accommodation party” category by expanding the definition of prohibited acts to include giving or selling a drug rather than just distributing or possessing with intent to distribute. Despite the seemingly broad sweep of the language used to define “distribute”, the legislature felt it necessary to add prohibitions against giving or selling. Arguably, Wood’s activities in 1971, if they had occurred after the 1972 Amendment, might have been considered “accommodation” giving or selling. But we need not consider that now except as an indication that prior to 1972 there was no proscription, under “distribution”, of such a joint purchase. Second, the penalties for an accommodation sale or gift have been reduced, thus clarifying the original purpose and intent of the Drug Control Act.
We have intimated before that mere presence at an unauthorized sale of a controlled drug will not justify the characterization of a user or possessor as a seller or distributor. See Reed v. Commonwealth, 213 Va. 593, 194 S.E.2d 746 (1973). Both the requisite intent and the physical conduct involved in a crime must be proven beyond a reasonable doubt. Here I conclude that neither the intent for nor the act of distribution was proven.
For these reasons I would reverse the judgment and remand the case for a new trial, if the Commonwealth be so advised.
Harrison, J., concurs in this dissent.
Formerly Code §§ 54-487 to -519.
Acts of Assembly 1970, ch. 650, now codified as Code § 54-524.1 et seq. ■ ■
An accommodation seller of a Schedule I, II or III drug could be punished by imprisonment for one to ten years or, at the discretion of the judge or jury, by confinement in jail for 12 months and a fine of $1,000. An ordinary seller or distributor could be imprisoned for five to forty years and fined up to $25,000.