dissenting.
1. Because I believe that the principles enunciated in Gunn v. State, 227 Ga. 786 (4) (183 SE2d 389) (1971), and State v. Fordham, 172 Ga. App. 853 (324 SE2d 796) (1984), require the conclusion that, due to the legislature’s changes in OCGA § 16-13-31 after appellant’s indictment, the prosecution for trafficking in cocaine was at an end before trial, I cannot concur with the majority’s affirmance of that conviction.
Appellant was charged with trafficking in cocaine by an indictment filed May 9, 1985. He was convicted of that offense on July 19, 1985. The indictment alleged that appellant knowingly possessed more than 28 grams of a mixture containing cocaine. Appellant contends on appeal that the statute on which the indictment was based was repealed prior to final judgment of conviction and that the prosecution was then at an end. I agree.
OCGA § 16-13-31 (a), which defines and proscribes trafficking in *54cocaine, was amended by an Act which took effect on July 1, 1985. Ga. L. 1985, p. 552. See OCGA § 1-3-4. That Act struck in its entirety the existing subsection (a) which forbade knowing “possession of 28 grams or more of cocaine or of any mixture containing cocaine.” In its place, the legislature enacted a subsection which omitted the phrase “or of any mixture containing cocaine” from the definition of the offense and from the three subparagraphs establishing penalties for violation of the subsection. Since appellant’s indictment was clearly based on the repealed statute and since the legislature did not enact a savings clause which would have preserved any prosecution for violations occurring prior to the repeal, the trial court erred in entering judgment against appellant for trafficking in cocaine. Gunn v. State, supra; State v. Fordham, supra.
The State argues that the legislative change in the statute merely removed superfluous language since the description of cocaine in OCGA § 16-13-31 (1) (D) includes any “compound” of cocaine. The State’s position, that “compound” is equivalent to “mixture,” is unpersuasive. The statute refers to “any salt, compound, derivative, stereoisomers of cocaine, or preparation of coca leaves, and any salt, compound, derivative, stereoisomers of cocaine, or preparation thereof which is chemically equivalent or identical with any of these substances. . . .” The word “compound” is defined in Webster’s New Inti. Dictionary (1981) as “a chemically distinct substance formed by union of two or more ingredients in definite proportion by weight and with definite structural arrangement.” It is clear from the context of the statute that “compound,” as well as “salt,” “derivative,” and “stereoisomer,” are used to denote substances produced by a chemical reaction. A “mixture,” on the other hand, is defined by that same source in such a way as to clearly remove it from the context of chemical reaction: “a portion of matter consisting of two or more components that do not bear a fixed proportion to one another and that however thoroughly commingled are regarded as retaining a separate existence — usually distinguished from complex and compound . . .” I find it apparent, therefore, that what is proscribed by OCGA § 16-13-31 (a), insofar as a possession offense is concerned, is the knowing possession of 28 grams or more of a substance which is chemically identical to, equivalent to, or derived from cocaine; not 28 grams or more of a mixture which contains less than 28 grams of actual cocaine. The change in the statute was substantive and the principle announced in Gunn and followed in Fordham requires the reversal of appellant’s conviction for trafficking in cocaine.
The majority seems to rely upon three premises on this issue: the statute under which appellant was prosecuted and convicted was not repealed; even if it hád been, Gunn and Fordham are not good law; and, besides, possession of any amount of cocaine is illegal.
*55As to the first premise, I note that the Act amending OCGA § 16-3-31 recited that it did so “by striking subsection (a) of said Code section in its entirety and substituting in lieu thereof a new subsection (a). . . .” The old subsection defined the offense of trafficking in cocaine as certain acts involving cocaine “or any mixture containing cocaine. . . .” The new subsection (a) omitted the language “or any mixture containing cocaine.” It is my opinion, therefore, that the Act repealed the statutory provision defining the offense of trafficking in cocaine and enacted a new definition which excluded appellant’s conduct from the definition of that offense.
The majority’s second premise, that Gunn and Fordham are incorrect, is also unacceptable to me. The statement the majority quotes from Gunn, which was relied upon in Fordham, while not the ultimate rationale for the Supreme Court’s decision, was part of an explication of legal principles leading to the decision. I cannot agree, therefore, that the statement in Gunn is mere dicta and not binding on this court. Accordingly, I believe that Fordham was correct and that those two cases require reversal of appellant’s conviction for trafficking in cocaine.
Finally, the majority repeats several times the truism that the possession of cocaine was illegal before and after the Act which repealed OCGA § 16-3-31 (a) and that the conduct for which appellant was prosecuted and convicted was the possession of cocaine. The record, however, shows that appellant was not charged with possession of cocaine, he was not convicted for possession of cocaine, and he was not sentenced for possession of cocaine. Appellant was indicted for trafficking in cocaine and the indictment tracked the language of the trafficking statute, the very language the legislature removed from the statute prior to appellant’s trial, language which contains elements not present in the possession statute. The evidence at trial was directed at proving the elements of trafficking in cocaine, not simple possession. The verdict form sent to the jury permitted that body to convict appellant of trafficking in cocaine or possession of cocaine; the jury (after re-instruction) chose trafficking. Finally, appellant was sentenced for trafficking in cocaine, including the imposition of a fine for which there is no provision in the statute which the majority holds to make appellant’s conduct unlawful, regardless of the state of the trafficking statute.
In sum, I remain of the opinion that the prosecution for trafficking in cocaine which led to this appeal was terminated when the legislature changed the definition of the crime of which appellant was accused and neglected to preserve ongoing prosecutions by means of a savings clause.
2. In the ninth division of the majority opinion, it is held that there was no error in returning to the jury the first verdict it had *56returned. I cannot agree with that holding.
Decided July 16, 1986 Rehearing denied July 30, 1986 Robert E. Andrews, for appellant. Thomas J. Charron, District Attorney, Debra H. Bernes, James T. Martin, Assistant District Attorneys, for appellee.“Where a jury agree on their verdict, write it out, have it signed by their foreman, and deliver it to the clerk, by the direction and in the presence of the judge, it is ‘published.’ [Cit.]” Bell v. State, 163 Ga. App. 672, 674 (295 SE2d 147) (1982). In the present case, the jury announced that it had reached a verdict and, by the court’s direction and in its presence, delivered the verdict to the clerk. Under Bell, the verdict was, at that time, published. In Maltbie v. State, 139 Ga. App. 342 (2) (228 SE2d 368) (1976), a cruelty to children case, the jury returned a verdict which found the defendant guilty “without intent.” This court held that “[t]he original verdict of the jury amounted to an acquittal. There could be no finding of guilt without intent in this case.” Id. at 345. In the present case, the jury deleted from the verdict form, in the option for finding appellant guilty of trafficking in cocaine, the word “knowingly.” I find those circumstances to bring this case directly within the ruling in Maltbie: “It follows that once the jury reached its verdict in this case, and the same was presented to an officer of the court and the court, the trial had ended. The trial court was without authority to return the jury to its room for any further action.” Id.
Although I cannot condone appellant’s conduct, and the evidence makes it clear that that conduct included possession of cocaine, I cannot overlook the clear dictates of the law. It is apparent from the record that the jury returned a verdict equivalent to an acquittal of the trafficking charge and that the trial court received that verdict. As in Maltbie, this court’s duty is to reverse appellant’s conviction and return the case to the trial court with direction to enter a judgment of “not guilty” as to the charge of trafficking in cocaine.
For the reasons expressed above, I must respectfully dissent.