(concurring specially).
Although I agree that defendant’s conviction should be affirmed, I believe that there is merit in defendant’s contention that the information charged two separate offenses.
*16SDCL 39-17-44 provides that:
“* * * (6) ‘Deliver’ or ‘delivery’ means the actual, constructive, or attempted transfer of a controlled drug or substance whether or not there exists an agency relationship.
“(7) ‘Dispense’ means to deliver a controlled drug or substance to the ultimate user or human research subject, including the packaging, labeling, or compounding necessary to prepare the substance for such delivery, and a ‘dispenser’ is one who dispenses.
“(8) ‘Distribute’ means to deliver a controlled drug or substance. ‘Distributor’ means a person who delivers a controlled drug or substance. * * *
“(17) ‘Practitioner’ means a doctor of medicine, osteopathy, podiatry, dentistry, or veterinary medicine licensed to practice their profession, or pharmacists licensed to practice their profession; physician’s assistants, certified to practice their profession; government employees acting within the scope of their employment; and persons permitted by certificates issued by the department to distribute, dispense, conduct research with respect to, or administer a substance controlled by this chapter. * * *
“(20) ‘Ultimate user’ means a person who lawfully possesses a controlled drug or substance for his own use or for the use of a member of his household or for administration to an animal owned by him or by a member of his household.”
SDCL 39-17-80 provides that:
“Practitioners shall be registered to dispense substances in Schedules II through IV if they are authorized to dispense under the law of this state.”
SDCL 39-17-88 provides that:
“Except as authorized by this chapter, it shall be *17unlawful for any person to manufacture, distribute, or dispense a substance controlled under this chapter, or to possess with intent to manufacture, distribute, or dispense, a substance controlled under this chapter.” (emphasis added)
It seems obvious to me that the legislature intended that the, unlawful distributing and dispensing of controlled substances should be considered as separate offenses, designed to prohibit different types of criminal activity. From the context of the statutes, it would appear that the prohibition against unlawful distribution was designed to apply to situations such as defendant’s case, whereas the prohibition against unlawful dispensing was designed to reach those cases in which a person otherwise entitled to lawfully deliver a controlled drug to an ultimate user did so under circumstances making such dispensing unlawful.
Although the information was probably technically defective, defendant did not demur to it on the ground that it stated more than one offense, as he was entitled to do under SDCL 23-36-8(3). I would hold that he thus waived any objection to the information on that ground. State v. Hanson, 54 S.D. 267, 223 N.W. 55. Moreover, the court’s instructions, though certainly not a model to be followed in other drug cases, substantially instructed the jury that defendant was being charged with the unlawful distribution of a controlled substance.
I agree with the majority opinion that the trial court did not err in refusing to give an instruction on entrapment. The record discloses that there was no evidence that the state’s undercover agent had in any manner attempted to entrap defendant. Because this is the sole issue that we need to decide regarding the question of entrapment, I do not join in the remainder of the majority opinion’s advisory statements regarding the entrapment defense. There will be time enough to deal with these questions when they are properly presented to us.
I agree with the majority opinion’s holding that the state’s undercover agent was not an accomplice.
I am authorized to state that Justice COLER joins in this special concurrence.