After a jury trial, appellant Pettigrew was found guilty of both possession of heroin1 and sale of heroin.2 *391He argues that the charging affidavit is impermissibly vague; that the trial court erred in failing to declare a mistrial; that the evidence of sale is insufficient; and that his conviction for both possession and sale is contrary to law.
We reverse the conviction for sale of heroin and affirm the conviction for possession of heroin.
The evidence most favorable to the State reveals that on October 20, 1972 four Indianapolis Police Department narcotics detectives were conducting a search of a certain house located in Indianapolis. During the course of the investigation, Detectives Bilbrey and Horn left the house. They stationed themselves on a highway overpass a short distance away and kept the house under surveillance. The other two detectives remained in the house with the occupant, Joann Milton, with whom Pettigrew had had a “close personal affair.”
With the detectives so positioned, Pettigrew arrived on the scene in an auto. After parking, Pettigrew walked onto the porch of the house and approached the door. Before gaining entry, he returned to the edge of the porch and dropped a white envelope on the ground beside the porch steps. He then returned to the door, knocked and was admitted.
Pettigrew’s actions were observed by Bilbrey and Horn who then radioed the two detectives inside, instructing them to detain Pettigrew. Bilbrey and Horn returned toward the house and retrieved the envelope which had the name of Pettigrew’s wife written on the front as follows: “Pettigrew, Mabel.” The envelope contained forty (40) individually wrapped foil packages of heroin.
Testifying in his own behalf, Pettigrew denied any connection with the envelope and claimed that he was merely attempting to visit an acquaintance.
APPELLANT DID NOT PRESERVE ALLEGED ERROR WITH RESPECT TO THE AFFIDAVIT
Pettigrew attempts to attack the charging affidavit under the theory that it would be impossible for a neutral and de*392tached magistrate to conclude from the affidavit that probable cause existed to believe the crimes had been committed and that he (Pettigrew) had committed them.
To the extent that this misplaced argument can be considered a challenge to the sufficiency of the charging affidavit, it fails because Pettigrew did not challenge the charge prior to trial. Thurman v. State (1974), 162 Ind. App. 267, 319 N.E.2d 151.
THE TRIAL COURT DID NOT ERR IN FAILING TO DECLARE A MISTRIAL
During the trial, the State made repeated unsuccessful attempts to introduce testimony of Detective Bilbrey concerning a telephone call allegedly made by Pettigrew to Joann Milton. Pettigrew made numerous objections to the testimony, all of which were sustained. Nevertheless, Pettigrew contends that the repeated attempts by the State to introduce evidence of the phone call so prejudiced the jury that the trial court should have declared a mistrial.
This argument must fail. As the State correctly observes, Pettigrew at no time moved for a mistrial. Likewise, he failed to request that the jury be immediately instructed to disregard the references to the phone call. All of Pettigrew’s objections to the disputed testimony were sustained. Furthermore, the- trial court gave Defendant’s Instruction No. 1 admonishing the jury to disregard all references to the telephone call. Pettigrew has no complaint when the trial court did all he asked.
THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE CONVICTION FOR SALE OF HEROIN
Pettigrew contends with reference to his conviction for sale that, at most, the evidence proves he attempted to hide the heroin in an effort to prevent being apprehended with it on his person.
*393The statute under which Pettigrew was convicted3 defines “sale” as follows:
“(10) ‘Sale’ means any and every sale and includes barter, exchange, gift or offer thereof (whether or not the offerer has the present ability to complete said transaction), manufacture, processing, transporting, handling, packing or any other production.”
“Sale” implies a transaction between persons. Buckner v. State (1969), 252 Ind. 379, 248 N.E.2d 348.4
The record in the instant case is devoid of evidence tending to prove any transaction or communication between Pettigrew and any other person with reference to the heroin. Likewise, there is no evidence tending to prove the existence of a distribution scheme or prearranged sale. Furthermore, the manner in which Pettigrew disposed of the heroin would not support an inference of intent to deliver or dispense.
The evidence of possession of heroin is conclusive beyond a reasonable doubt. However, mere proof of possession is insufficient to support a conviction for sale. Buckner v. State, supra. Therefore, the conviction for the sale of heroin must be reversed.
We consider ourselves obligated to order discharge upon the sale count rather than retrial. To do otherwise is to place the trial court in the untenable position, in the event of a subsequent retrial and conviction upon the sale count, of vacating that conviction or, in the alternative, vacating the possession conviction which we herein affirm. See Thompson *394v. State (1972), 259 Ind. 587, 290 N.E.2d 724, cert. den. 412 U.S. 943, 93 S.Ct. 2788.
The conviction for possession of heroin is affirmed. The conviction for sale of heroin is reversed and the defendant is ordered discharged as to that charge.
Buchanan, J., concurs; White, J., concurs with separate opinion.
. Acts 1935, ch. 280 § 2 (repealed 1973).
. Acts 1985, ch. 280 § 2 (repealed 1973).
. Acts 1935, ch. 280 §1, as amended, Acts 1961, ch. 90 §1; Acts 1971, P.L. 468, § 1 (repealed 1973).
. ' At the time Buckner was decided, “sale” was defined as follows:
“(10) ‘Sale’ includes barter, exchange, or gift, or qifer. therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee.”
“Sale” as defined at the time Pettigrew was alleged to have violated the statute included manufacture, processing, transporting, handling, packing, or any other production. Reason dictates that before any of these activities could support a conviction for sale, there must exist evidence from which a reasonable inference could be drawn that such activities were done in preparation for or in furtherance of an underlying sale agreement or distribution scheme.