The provisions of Sec. 18.2-248(a), which deal with the reduced penalty contingent upon proof of an accommodation gift, distribution or possession of marijuana operate only to mitigate the degree of criminality or punishment, rather than to create two different substantive offenses, as the defendants contend. That Sec. 18.2-248 and its predecessors created only a single offense (the illegal transfer of controlled drugs), while providing for mitigation of punishment in certain accommodation cases, was alluded to in Wood v. Commonwealth, 214 Va. 97, 197 S.E.2d 200, appeal dismissed, 414 U.S. 1035 (1973), which was decided prior to Jefferson and Brown. In Wood we recognized that the 1972 and 1973 amendments to former Sec. 54-524.

"Deliver" means "the actual, constructive, or attempted transfer" of any controlled substance, "whether or not there exists an agency relationship," from one person to another. Id.; Wood v. Commonwealth, 214 Va. 97, 99, 197 S.E.2d 200, 202, appeal dismissed, 414 U.S. 1035 (1973). Ultimate receipt of payment for the distribution is not an element of the offense.

The trial court could properly infer from the overt acts of the defendant that he aided and abetted Billy Bowers in the sale of narcotics. Cf. Wood v. Commonwealth, 214 Va. 97, 197 S.E.2d 200 (1973); Wood v. Commonwealth, 213 Va. 363, 192 S.E.2d 762 (1972). Affirmed.

"The term 'distribute' . . . has been defined by the General Assembly so as to give it the broadest possible meaning and to proscribe acts which would not fall within the more limited terms of 'sale,' 'barter,' 'gift' or 'exchange.'" Wood v. Commonwealth, 214 Va. 97, 99, 197 S.E.2d 200, 202 (1973). Appellant argues that a distribution or delivery requires a "transfer of possession from one person to another."

statutes based upon the Uniform Controlled Substances Act) are essentially unanimous in reaching the same conclusion: when a drug offense is defined in terms of "delivery" (using a definition of "delivery" derived from the Uniform Controlled Substances Act), the "procuring agent" or "purchasing agent" defense is no longer available; a person acting as the agent of the purchaser can be charged as an accomplice to the delivery. See McKissick v. State, 522 So.2d 3, 4 (Ala.Cr.App. 1987); People v. Cattaneo, 217 Cal.App.3d 1577, 266 Cal.Rptr. 710, 713-15 713 n. 2 (1990); People v. Dinkel, 189 Colo. 404, 541 P.2d 898, 900 (1975); State v. Kelsey, 58 Haw. 234, 566 P.2d 1370, 1373 (1977); State v. Sharp, 104 Idaho 691, 662 P.2d 1135, 1139 (1983); People v. Williams, 54 Mich. App. 448, 221 N.W.2d 204, 205-06 (1974); Hindman v. State, 647 P.2d 456, 458 (Okla.Crim.App. 1982); Harwood v. State, 543 P.2d 761, 763-64 (Okla.Crim.App. 1975); State v. Baldwin, 867 S.W.2d 358, 360 (Tenn.Cr.App. 1993); Wood v. Commonwealth, 214 Va. 97, 197 S.E.2d 200, 202 (1973); State v. Grace, 61 Wn. App. 787, 812 P.2d 865, 867-68 (1991); State v. Sherman, 15 Wn. App. 168, 547 P.2d 1234, 1236 (1976); State v. Hecht, 116 Wis.2d 605, 342 N.W.2d 721, 725-28 (1984). We have found only one decision contra: State v. Lott, 255 N.W.2d 105, 107 (Iowa 1977).

State v. Hecht, 116 Wis.2d 605, 342 N.W.2d 721, 725-28 (1984). Accord, People v. Dinkel, 189 Colo. 404, 541 P.2d 898 (1975); State v. Kelsey, 58 Haw. 234, 566 P.2d 1370 (1977); State v. Sharp, 104 Idaho 691, 662 P.2d 1135 (1983); Tipton v. State, 528 P.2d 1115 (Okla. Crim. App. 1974); Hindman v. State, 647 P.2d 456 (Okla. Crim. App. 1982); Wood v. Commonwealth, 214 Va. 97, 197 S.E.2d 200 (1973). Grace has brought to this court's attention only one case in which the procuring agent defense has been held to remain viable in a jurisdiction which has adopted the Uniform Controlled Substances Act.

The distribution statute proscribes the broad range of "delivery or transfer, actual or constructive, of possession or title to such drugs from one person to another." Wood v. Commonwealth, 214 Va. 97, 99, 197 S.E.2d 200, 202 (1973) (emphasis added). However, I believe that Wharton's Rule prohibits a prosecution for conspiracy to distribute heroin when the evidence establishes that only two actors are involved in the agreement.

Neither the appellant nor the respondent have cited any Missouri cases directly in point. Appellant cites Veitenheimer v. State, 501 P.2d 908 (Okl.Cr. 1972), People v. Freeman, 41 A.D.2d 811, 342 N.Y.S.2d 396 (1973) and Wood v. Commonwealth, 214 Va. 97, 197 S.E.2d 200 (1973) but each of these cases is distinguishable and is not controlling here. The respondent cites Tipton v. State, 528 P.2d 1115 (Okl.Cr. 1974) where the court rejected defendant's contention that he was not guilty of unlawful distribution of a controlled substance when he accompanied an undercover agent to a source of supply and obtained an amount of heroin which he turned over to the agent.

Other courts have held that the same or a similar change in the applicable statutory language makes the issue of agency irrelevant and clearly precludes the use of the procuring agent defense. See, United States v. Redwood, 492 F.2d 216 (3d Cir. 1974); United States v. Johnson, 481 F.2d 645 (5th Cir. 1973); United States v. Hernandez, 480 F.2d 1044 (9th Cir. 1973); Commonwealth v. Noons, Mass. App., 308 N.E.2d 915 (1974); cf. Wood v. Commonwealth, 214 Va. 97, 197 S.E.2d 200 (1973). We are in accord with the reasoning of those decisions and hold that the case of Posey v. State, supra, relied upon by the defendant is distinguishable from the case before us in that the conviction there was had under now repealed drug laws and was for selling a prohibited substance, not distributing as defined by 63 O.S. § 2-101[ 63-2-101].