(dissents to results reached):
I am compelled to dissent to the results reached in this decision; because as it stands, I believe it is a miscarriage of justice. The facts of the instant case do not sustain a conviction for unlawful delivery of a controlled dangerous substance, but do sustain a conviction for possession.
As I view the facts of this case, it falls clearly within this Court’s decision in Posey v. State, Okl.Cr., 507 P.2d 576 (1973), and the results reached herein should be the same as those reached in the Posey case.
This decision attempts to avoid the Po-sey decision by relating that no agency relationship existed, and emphasizes, “Langley testified he dealt with defendant at all times during this transaction.” Such may be true, but as I view the facts, under no stretch of the imagination can it be said that Langley bought the LSD from defendant. Defendant was approached by Langley’s informer to get some LSD for him; she was driven to the seller’s place in the officer’s automobile; she took the officer’s money, with which to pay for the substance ; and she returned ten dollars to her principal, i. e., Officer Langley. Officer Langley may have intended to purchase the substance from defendant, but she did not have any, so the circumstances developed which caused him to use her as HIS AGENT to procure the substance from *830someone else who had the substance. That person was also charged as a seller of dangerous drugs. Langley testified:
“We then went and got in my car and proceeded to the Southwest Terrace Trailer Park to the 5th trailer on the second row, with a white picket fence around it, Trailer No. 10. I parked north of that trailer, across the street north from that trailer by a 1968 Ford Torina. At that time Miss Collins got out of the car and went to the trailer and went inside. ... I might add that before she went in I gave her $50.00 in marked bills and she said it would cost $40.00 and possibly $50.00, and I GAVE HER $50.00 IN MARKED BILLS.” (Tr. 4) [Emphasis added]
Officer Langley’s testimony continued:
“She remained in the trailer for approximately five minutes and then she came out of the trailer accompanied by Mr. Mark Hollars. They walked across the street and got in the 1968 Torina setting next to me, and I observed them get into the car, they stayed there about five minutes, less than five minutes, approximately two or three minutes, they both got out of the car and walked back to the car and I noticed at that time Mr. Hollars had what appeared to be a plastic baggie in his hand, and they went back into the trailer.
* * * * * *
Then about five minutes later they came out of the trailer, Mr. Hollars went to his vehicle, and Miss Collins came and got back in my vehicle. And I asked her if she had the L.S.D. and she said she did. She took it out of her pocket and handed me a plastic baggie containing approximately 50 small white tablets. And I asked her what the price was and she said $40.00, AND SHE RETURNED $10.00 TO ME.” [Emphasis added]
On cross-examination, Officer Langley was asked, “In other words she just went in and got them for you, is that correct?” Officer Langley answered, “The buy was made from her, I guess that is what she was doing when she was inside the trailer.”
What the officer was saying was, I sent her in to make the buy for me, because I intended to make my purchase from her, even if I had “to set her up.” But, because defendant procured the substance with money furnished by the officer, upon his instructions, how could he then buy from her. She never owned the substance, but only had possession of it, and only because of him. Officer Langley testified, “I did not buy from Mr. Hollars, I bought from Myra Collins.” But he did not buy anything from Myra Collins either. The most this defendant is guilty of is Possession of LSD.
As I view the facts of this case, Myra Collins was in almost the same situation that “Tom” enjoyed in this Court’s decision in Carter v. State, Okl.Cr., 521 P.2d 85 (1974), except that she did not know she was being used by the officer. In the Carter decision, this Court stated:
“The defendant next urges that the trial court erred in overruling his demurrer to the evidence as the record reflects that any delivery or distribution was made to one ‘Tom’ and not to Cary Thurman as alleged in the information. The defendant argues that the accusation made by the Information varied from the proof presented at trial and that said variance was fatal. However, said record shows that the defendant handed a bag of pills to Tom who immediately handed them to Thurman and that the defendant and Thurman consummated the financial arrangements. Tom was only a conduit through which the distribution of drugs was made. [Emphasis added]
The only difference between Tom’s situation and that of Myra Collins was that Tom knew he was acting as a conduit for the police, but Myra Collins had not been so enlightened.
*831At her second hearing, when defendant attempted to withdraw her plea of guilty, she testified:
“My sister and I were sitting in The Spot drinking beer and we had quite a bunch of beer and we decided we needed to go home. So we saw a young man, Robert Horton, in the Spot and we had him drive us home. We got home and he said, ‘Myra, there is a guy coming from Erick that is wanting to buy some acid or something.’ He said, ‘I have already told him I could get it and everything, and if you could help me out I would appreciate it.
I said, T really don’t want to’ and he said that if I was a friend and if I cared anything about him I would do it. So I said, ‘Yes, I know where I can find some, but let me think about it for awhile and we set there and talked about other things, and finally I told him I would go and find out if I could find some, and I felt like I could. I had been around drugs, yes, and so he said that he would be back later with this man.”
Defendant did not deny that the two men came to the apartment where she was; that they talked; that she asked one of them to drive her to the place where she could get the substance; that Officer Langley drove her to Mr. Hollars’ trailer; that Officer Langley gave her fifty dollars; that she went into the trailer, got the LSD and returned to Officer Langley’s car, when she gave him the LSD and returned ten dollars to him. Defendant did deny, however, that the informer telephoned her and talked with her, because she did not have a telephone in her apartment. Defendant also denied selling drugs to anyone.
As I view the facts of this case, defendant could legally be charged with Possession of LSD. To convict her with the unlawful delivery of such substance, under these facts, and for this Court to affirm that conviction is, I believe, a miscarriage of justice. The Attorney General argues that the delivery was unlawful and hence the sentence should be sustained. Under other facts I might agree, but in the instant case I cannot accept the theory that law enforcement officers are employed to instigate such “unlawful deliveries.” Likewise, if this Court is to retain any consistency in its decisions, this Court’s former decisions should be reasonably followed, at least. Otherwise, the state of law becomes of such fluxuating nature that no one knows what the law means.
Whether or not Langley intended to make defendant his procuring agent is of little consequence. Under these facts he did make the, defendant his procurement agent, and she carried out his instructions. This Court stated, in Posey v. State, supra :
“We agree further with the Michigan Court ‘that a procuring agent who buys from a third party with funds provided by his principal, and at the principal’s request, is far different from the employee of a narcotics peddler. It is only the latter individual who can in any sense be considered a seller of narcotics.’ ”
This Court also repeated with approval, in Posey v. State, supra, what the Massachusetts Supreme Court stated in Massachusetts v. Harvard, 356 Mass. 452, 253 N.E.2d346 (1969), as follows:
“At the moment the defendant received the drug he had the control and power to do with it what he willed. In this case he chose to hand it immediately to Martin rather than hold it longer, keep it himself, or otherwise deal with it. Possession ought not to depend on the duration of time elapsing after one has an object under his control. A standard based on duration would be exceedingly difficult to apply. Authorities in other *832jurisdictions support this conclusion. [Citations omitted.].”
There was absolutely no showing whatsoever that this defendant had any financial interest in the transaction, or benefit from the sale. She could not even tell Langley for certain what the cost of the LSD would be; and, there was no evidence of association, collaboration, or community of scheme between defendant and the true seller. And even more conclusively is the fact that at one time in Officer Langley’s testimony he referred to the LSD, “WHICH WE WERÉ GOING TO PURCHASE . . . ” Consequently, as I view this conviction it clearly falls within this Court’s decision in Posey v. State, supra.
Lastly, I do not entirely subscribe to this decision’s treatment of defendant’s attempt to withdraw her plea of guilty. There is no doubt in my mind but that defendant did enter her plea unknowingly and through misunderstanding. There may not have been a mistake of facts, as recited in this decision, but' there was a misapplication of such facts, as I view them. The misapplication of the facts lies in the instance of Officer Langley, who instigated the delivery. Consequently, insofar as the relationship of agency existed, as I perceive the facts, the delivery was not unlawful as contemplated by the law. And, I see the entry of a plea of guilty as being little different from a finding of guilty. If this Court possesses the authority to modify the judgment and sentence on a finding of guilty, then when the appeal reveals a misapplication of the law on a guilty plea, I believe this Court possesses the same authority to modify the judgment and sentence.
Therefore, I dissent to the results reached in this decision and would modify the judgment to Possession of LSD, and modify the sentence to two (2) years imprisonment.