BEFORE WALKER, HAWKINS AND DAN LEE
HAWKINS, JUSTICE, FOR THE COURT:
Lewis "Fish Slim" Tyler appeals from his conviction in the Circuit Court of the Second Judicial District of Harrison County of the crime of sale of a controlled substance, and sentence of one year. Tyler at the time of trial was 74 years of age with no prior criminal record.
Finding the evidence offered on behalf of the state is in irreconcilable conflict, we reverse and render.
Pentazocine, also known Talwin, comes in light orange or peach colored tablets. It is a Schedule II controlled substance under Miss. Code Ann. 41-29-115 (1972).
Pyribenzamine, or triplennamine hydrochloride, comes in blue tablets, is an antihistamine drug and is not a controlled substance.
The two drugs are sold in "sets" by drug traffickers as a substitute for heroin.
On June 3, 1982, Shirlene Anderson, undercover agent for the Mississippi Bureau of Narcotics, purchased five sets of these drugs from Tyler in a Gulfport saloon. Tyler was indicted October 1, 1982, by the grand jury of the Second Judicial District of Harrison County.
At trial Anderson testified Tyler delivered the tablets to her in five packages of tin foil, that she examined them when she made the purchase, and later at
the local Bureau office she counted five of each, labeled them and sealed them in a package, and personally delivered the package to the Mississippi Crime Laboratory in Gulfport. Her testimony that she carefully examined the tablets and counted five each of the light orange (or peach), and blue is unequivocal and positive.
Allison Smith, drug analyst for the Mississippi Crime Laboratory, testified that from the package delivered her she personally tested one of the light orange or peach colored tablets, and it was pentazocine, also known as Talwin, and that she tested one of the blue tablets and it was triplennamine, also pyribenzamine.
She was positive and unequivocal that she tested one of the light orange, or peach, colored tablets, and it was Talwin, and one of the blue tablets and it was pyribenzamine.
The testing consisted of crushing one tablet of each kind. When Smith was introducing the samples into evidence, it developed there remained five orange pills and four blue pills.
Because of this discrepancy, Tyler moved the court to dismiss the charge, and for a directed verdict, which the circuit judge in the record ...