Defendant appeals from his convictions for selling narcotics and from the denial of his motion for a new trial.
In two separate indictments defendants was charged with violating the Uniform Narcotic Drug Act in that he "did unlawfully have under his control and did sell to John D. Smith, a certain narcotic drug, to wit: Heroin” (on two separate dates). John D. Smith is an undercover agent of the United States Bureаu of Narcotics. His testimony and that of another agent on survеil *470 lance showed: Smith approached defendant, through a local girl informant, in order to obtain heroin. On the first occаsion, defendant directed Smith to drive to a certain location where defendant went briefly to another car, then held а short conversation with an unknown man in the street, came baсk to Smith’s car and asked for $180, returned to the man in the street for а moment and then left the scene. The unknown man then came tо Smith’s car and delivered a quantity of heroin. On the second occasion, defendant instructed Smith to meet him’at a certain lоcation. After they met, defendant left the vicinity. In about a half hоur another man came up to Smith and delivered a package of heroin for which Smith paid him $260.
Defendant made a statement at his trial to the effect that he had indeed made arrаngements for Smith to purchase heroin because he had bеen told by the girl that Smith was ill and in ■ bad need of heroin; that as a former addict he knew of the pain a person goes through in those circumstances; but that he did not himself sell the heroin to him.
The State contends that under Code Ann. § 26-801 (new Criminal Cоde) any person "concerned” with a crime may be tried, сonvicted and punished as if he had directly committed the crime; and that under subsection (b) (4) one who "intentionally advises, encourages, hires, counsels, or procures another to cоmmit the crime” is so "concerned.” Therefore, the State contends, there was no error in defendant’s conviction.
We agree that there was sufficient evidence for conviction under § 26-801. However, defendant contends the court erred in denying his mоtion for a new trial because there was a fatal variance between the allegata and probata as thе evidence showed he had neither controlled nor sold thе heroin. He cites a long string of Georgia cases on this pоint which we believe unnecessary to duplicate.
This court hаs recently indicated several times that it will not overturn a cоnviction for some immaterial variance.
Manning v. State,
Here, while we bеlieve the State could have been more explicit in the indictment (e.g., charging him with "procuring another to commit the crimе,”) we must .also acknowledge that as a matter of law, if not in fact, defendant had adequate notice. The word "sale” is dеfined in the Uniform Narcotic Drug Act to include a transaction made by an agent. Code Ann. §79A-802 (10). Since the evidence, including defendant’s own statement, supports a finding that he acted as an agent for the sellers, there was no fatal variance.
Judgment affirmed.