HAWKINS, JUSTICE, FOR THE COURT:
Bruce Sanders appeals from his conviction in the Circuit Court of Lowndes County for the sale of cocaine, sentence of twelve years and fine of $10,000.
While he makes several assignments of error, we find only one requiring reversal, that the circuit judge erred in granting the state an instruction which authorized it to convict for possession of cocaine with intent to transfer, a crime of the same magnitude and carrying the same sentence as the crime for which he was indicted.
Bruce and Bill Sanders are brothers, who lived in Columbus. On the night of Thursday, October 21, 1982, the Mississippi Bureau of Narcotics, in cooperation with the Columbus-Lowndes County Narcotics Unit arranged and secured the illegal sale of cocaine from them.
Tony Owens, a "cooperating individual," *fn1 and Ricky Smith, an agent with the Bureau, started out around 8:30 p.m. visiting the local bars searching for the brothers. Not finding either, Owens telephoned their grandmother's residence around 9:30 and Bruce answered. Owens asked for Bill and Bruce replied that he was at the Hilton Inn in Columbus, in Room 109. *fn2
Owens and Smith went to the room at the Hilton Inn and Owens asked Bill if he had any cocaine, who replied all he had was a personal stash at home. Bill
called the residence and asked Bruce to get his (Bill's) personal stash from a bedroom and bring it. Bruce complied and appeared a short while later at the motel room. Smith testified as follows:
All right. Bruce knocked on the door. Bill said come in. He came in. He said hello to everybody, and was half smiling. He took a clear plastic package or envelope out of his left shirt pocket. It had a white powdery substance in it, and he asked who gets it. I, at that time, point to Bill Sanders, and I said give it to him, and Bill said yea, give it to me. QUESTION:
And, at that time, did he, in fact, give the substance to Bill Sanders? ANSWER:
At that time he gave the substance to Bill Sanders. Sanders ex-Bill Sanders examined it, and said it looks like you have been tooting out of it already. QUESTION: And who did he make that remark to?
He made that remark to Bruce Sanders.
At that time, what did Bill Sanders do, Rick?
At that time, Bill Sanders examined the cocaine, and at that time he ten [sic] handed it to me, and I looked at it, examined it pretty closely, and I asked him how much money he wanted for it. He replied that he wanted $120.00. I tried to talk him down to $110.00, but he wouldn't go. He said
he had to have $120.00 for it.
Smith paid Bill Sanders $120 for the purchase.
The substance was examined by the Mississippi Crime Laboratory in Batesville and determined to be cocaine. On November 11, 1982, Bruce Sanders was indicted by the Lowndes County grand jury, charging that he did feloniously, knowingly and intentionally sell a controlled substance, to-wit: cocaine to agent Ricky Smith for $120.
At trial the above facts were related without substantial dispute by Smith, Tom Compton, an officer with the Columbus-Lowndes Narcotics County Unit, and William S. Benyo, Jr., a Bureau agent. The latter two heard the conversation at the motel over a walkie-talkie connected to Smith.
Joe Lee Williams, Jr., an employee of the Mississippi Crime Laboratory, testified to three tests he had made on the substance obtained from Sanders, and gave his opinion that it was cocaine. Douglas Crawford, a chemist with the Mississippi State Chemical Laboratory, also tested the substance and gave his opinion that it was cocaine. Douglas was of the view that some of the tests run by Williams would not be conclusive in determining whether the examined substance was cocaine. The testing by the Mississippi State Chemical Laboratory was made pursuant to a court order sustaining a defense motion for such testing.
Dr. Henry E. Outlaw, a professor of chemistry and biology from Delta State University, testified as a defense witness. Dr. Outlaw made no examination or tests of the substance. It was his opinion that the tests made by the other two experts were inconclusive in determining whether the substance was cocaine.
At the conclusion of the trial, over the objection of Sanders, the state was granted the following instruction:
The Court instructs the Jury that even if you do not find the Defendant guilty of Sale of a controlled substance, you may still find the Defendant guilty of the included
offense of Possession of a controlled substance with the intent to transfer. If you find from the evidence in this case beyond a reasonable doubt that the Defendant, BRUCE SANDERS, did on or about October 21, 1982, unlawfully, wilfully, feloniously, knowingly, and intentionally possess Cocaine with the intent to transfer that Cocaine to another person, then you shall find the Defendant guilty of Possession with intent to transfer.
The first basis of the objection was the proposed instruction was not submitted to defense counsel until the morning of the trial, in violation of Rule 5.30 of the Mississippi Rules of Criminal Procedure. The record also reveals the following comments, objections and ruling of the court in reference to this instruction:
I would like to say for the record, now your Honor, in answer to the question of whether S-5 is a misstatement of the law. We contend that it is a misstatement of the law and a most dangerous deception and misstatement of the law because it - it, it characterizes the, uh, possession with intent to transfer as a lesser included offense, and it's not lesser. It carries exactly the same penalty as sale itself, and just as the Court has subscribed to the view that the schedule section which defines cocaine, the section relative to sale and possession with intent to transfer and deliver, possession with intent to deliver and so forth defines what sale is and includes those things. So, this is not a lesser included offense, possession with intent to transfer. It would subject - what the jury would be doing if they found possession with intent to transfer, they would be subjecting this defendant to exactly, precisely the same jeopardy of a 30-year maximum sentence as they would if they found him guilty of the sale, and this instruction, we feel, would be calculated to deceive the jury rather than to - rather than to illumine the matter and show them that they could find the man guilty of either sale, with which he is charged, or simply possession.
If your Honor please, if the defense wants to amend that instruction to where it does not say lesser, but the included offense, then the State has no objection. All those offenses are delineated in the same section of the statute, controlled substance statute. That is an included offense to a sale. In order to sell, you have to possess it with the intent to transfer it first. So, consequently, it is an included offense. Of course, in the law we call it a lesser included offense, and I did not intend to mislead the jury. If he wants to strike the word lesser, I have no objection to that.
In our practice, your Honor, defining offenses that carry the same penalty as being choices that the jury has is unknown. Defining a truly lesser included offense is unknown, and the defense has offered an instruction to that affect [sic].
Controlled substances statute?
No, no, I am thinking about murder, and we quite frequently include a manslaughter instruction, which is a lesser included offense.
Carries a different maximum penalty than murder.
Yes, it's a lesser offense.
Whereas possession with intent to transfer is not a lesser offense. It is the same offense in that it carries the same maximum penalty.
Well, would you like the word lesser to be blocked out ot [sic] this instruction?
No, sir, I would like the instruction not to be given at all because it's, it's going to be hard enough for the jury to distinguish between sale and possession. The man's charged with sale. If we throw in a third element of possession with intent to transfer, the jury is only going to be confused, and if the jury decides that Bruce Sanders - if they believe Bruce Sanders that he didn't know there was going to be a sale, then they are likely to convict him of possession with intent to transfer which will subject him to the same jeopardy as if he were convicted of what he is charged with.
Mr. Allgood, do you have any case law upholding this?
If you Honor please, I have no authority for that, and I will be honest with you, I have not researched the law on it. Prior to the enactment of the, uh, present uniform controlled substances law, and the Judge can take this, this may cut both ways. I don't know, you can look at it both ways. I'm just going to tell you the legislative history.
I'm going to delete the word lesser. We don't have any law, any case law to guide us, and we'll just make some law. I'm going to give ...