concurring in part and dissenting in part.
I concur in the majority opinion in the first five issues disposed of therein, but dissent to Issue VI in said opinion.
My dissent in Issue VI is based on the fact that the trial court properly found the defendant to be guilty of seven counts of delivery of controlled substances and sentenced him on all seven counts. Although the State had originally charged that the deliveries in these seven counts involved both Schedule I and ■ II drugs, they later amended the informations to read that they were substances classified under Schedule II. The counts on which this defendant was found guilty were Count I, delivery of amphetamine in the amount of 8.776 grams; Count II, delivery of amobarbital and seco-barbital in an amount of 21.919 grams; Count III, delivery of secobarbital in the amount of 21.949 grams; Count IV, delivery of amphetamine in the amount of 37.-353 grams; Count V, delivery of codeine in the amount of 3.157 grams; Count VI, delivery of amphetamine and amobarbital in the amount of 23.731 grams; and Count VII, delivery of amobarbital and secobarbi-tal in the amount of 27.996 grams.
The evidence showed that this appellant had a large number of different types of drugs for sale. Each of the items was packaged as a unit for sale of that item, some of them being the pure drug and some of them mixes, as is apparent from seeing the descriptions in the charges. The undercover police officer and the appellant discussed prices and finally agreed on the price of $540 for all of the drugs involved. The officer then picked out certain of the items and purchased them for $250 on that day as that was all the money he had. He came back the next day with $290 and purchased the rest of the drugs.
The statute under which appellant was charged on all seven counts was § 35-24.1— 4.1-2, which is entitled “Unlawful Dealing in A Controlled Schedule I, II, or III Substance.-Except as authorized by this Article (§ 35-24.1-1-1 and 24-24.l-6-l(c)) a person is guilty of unlawful dealing in a Schedule I, II, or III controlled substance if he: (1) knowingly manufactures or delivers a controlled substance pure or adulterated classified in Schedule I, II, or III except marijuana or hashish; or . . . . ” Delivery is defined as an actual or constructive transfer from one person to another of a controlled substance, whether or not there is an agency relationship. Ind.Code § 35-48-1-1-. (Burns 1979 Repl.)
It is apparent then, under this statute, that each time a person delivers or transfers a controlled substance that falls under any of Schedules I, II, or III, he commits the crime described in said statute. The fact that several sales take place in one “transaction” is of no moment whatever in determining whether one crime or several have been committed. The test to use in determining whether multiple counts are the same for purposes of double jeopardy is not whether they arose from the same act but rather on the identity of the offenses themselves. Elmore v. State, (1978) Ind., 382 N.E.2d 893; Adams v. State, (1979) Ind., 386 N.E.2d 657.
*777Appellant, here, on two different days, sold five different drugs, namely, amobarbi-tal, secobarbital, codeine, amphetamine and phenobarbital. He further sold two separate quantities of some of these drugs that were mixed, one mixture being amobarbital and secobarbital, and the other being amphetamine and secobarbital. What the majority is saying is that since this all took place in one “transaction” -he is guilty of one crime and committed no further crimes in selling the other six drugs or mixtures of drugs, even though each transfer was a delivery of a controlled substance under the statute. These were not fungible items, but were separate quantities of different substances, held for sale in the individual units in which they were found here. Nor can this be compared with one robbing a victim and taking several items from his person at the same time. There, the crime is the taking of property from the person of the victim by putting in fear, and this is one act, while the perpetrator is extracting several items from the person of that victim. Here, there is a delivery of a controlled substance each time the perpetrator makes a delivery of a substance that is in violation of the statute. In Elmore, supra, and Adams, supra, we established the principal that when a conviction for one crime requires proof of facts in addition to those required for convictions of other crimes, then the offenses are not the same and separate sentences can properly be imposed for each. As we said in Elmore, “Focus of a proper double jeopardy analysis must be on whether offenses to be prosecuted and punished are same and not whether offenses spring from same act or operative circumstances.. .. ”
We have faced the same problem in situations where more than one person was robbed in the same robbery. In Williams v. State, (1979) Ind., 395 N.E.2d 239, we held that an individual who robs a business establishment and takes that business’ money from four employees, can be convicted of only one count of armed robbery since the offense was taking of the business’ money by force and by putting in fear and the fact that it was taken from four different tellers in the same bank did not change that offense into four separate ones. Williams, supra, was followed by Rogers v. State, (1979) Ind., 396 N.E.2d 348 in which a grocery store’s money was taken from two separate employees of that grocery store. We held, however, in McKinley v. State, (1980) Ind., 400 N.E.2d 1378, that where a robber took the property belonging to the business and also took the personal property of the person in the store, it constituted two counts of armed robbery since there were two offenses of taking the property of another by force and by putting in fear. We followed McKinley, supra, in Ferguson v. State, (1980) Ind., 405 N.E.2d 902, in which one robber took the property of the business involved and also the personal property of the employees of the business.
In the case before us, delivery of codeine was a separate and distinct offense from the delivery of amphetamine, requiring proof of different facts and establishing a different offense than the other. The same can be said of all of the other six counts, even though each separate substance may be broadly classified as a Schedule II controlled substance. The appellant therefore committed a separate crime with the delivery of each substance and the trial court properly sentenced him on each of the seven counts. To hold otherwise would be to enable a drug dealer to arrange to sell every conceivable type of drug under the statutes forbidding the sale of them, in lots of semi loads or railroad boxcar assignments and be guilty of one delivery in the whole transaction. This certainly was not the intention of the legislature and is not the law as we have found it in the above cases.
The majority, in its opinion, followed a Court of Appeals case, Martin v. State, (1978) Ind.App., 374 N.E.2d 543, which cited no authority but simply held that where a defendant was found to possess controlled substances classified in Schedules I, III, and IV, he had committed one single crime of possession. I think that holding was in error and we should reverse it. The same reasoning in Martin, supra, was followed by the Court of Appeals in Bates v. State, *778(1978) Ind.App., 381 N.E.2d 552 in regard to dealing in controlled substances. This holding is likewise in error and should be reversed.
GIVAN, C. J., concurs.