(concurring). I not only concur with what is said in the opinion, but I think the case should be remanded with instructions to discharge the defendant. If one may be sentenced to a long term of imprisonment upon evidence disclosed by this record, then the traditional rule that one may be convicted of crime only upon evidence establishing one’s guilt beyond a reasonable doubt has become a mere reminiscence in this state.
The story of the defendant is not inherently improbable. It must be admitted, though regretfully, that it is not unbelievable, or that it is contrary to human experience. Should this, entirely reasonable story, when weighed in the light of human experience, not only be considered outweighed, when thrown on the judicial scale, by the testi*650mony of the complaining witness, but so shattered as to justify a verdict that his guilt is established beyond a reasonable doubt?
There are many things connected with the testimony of the complaining witness that tax human credulity. Her statement that she became conscious after she reached her room, but had no recollection of how or when she arrived there, is the first circumstance in the trend of events narrated by her which is somewhat difficult of belief. Then her entire subsequent conduct is utterly inconsistent with the usual conduct of persons under such circumstances. She said nothing to any one about the outrage, not only until after the child was born but not until efforts to make the plaintiff contribute to the support of the child had proved unavailing. Her course of conduct in this respect is so out .of harmony with ordinary human instincts and conduct as to be unbelievable — at least so doubtful as to its truth that it should not be permitted to judicially outweigh the testimony of the defendant so as to justify a conclusion that his guilt of a crime which consigns him to a long term of imprisonment has been established beyond a reasonable doubt. All who are accustomed to weighing evidence know that evidence such as this does not outweigh the testimony of the defendant, and a jury should not be permitted to find that guilt beyond a reasonable doubt is established by such a record. To permit such a verdict to stand is to abdicate the judicial function and reduce the rule that one can be convicted of crime only upon evidence establishing his guilt beyond a reasonable doubt to a shadow and a myth.
I am authorized to state that Mr. Justice Eschweiler and Mr. Justice Doerfler concur in these views.