(dissenting):
I dissent.
In my opinion the petition for a new trial should be granted. There are many aspects of this case which disturb' me greatly. In the first place, the complaining witness had only to board the bus which had stopped to take her home and this problem would not be before us. Instead of availing herself of the *29quick and safe method of transportation at her disposal, she elected to ride home with a man she didn’t know. This was at 10:00 at night. During the ride the car stopped at two or three places where she had ample opportunity to leave, if she apprehended any danger, particularly in view of the fact that she had been informed that day that she was pregnant, and she had not yet told her husband.
Perhaps we should disregard the testimony of the accused, as resurrected by the sodium amytal, but I cannot concur with my associates in the conclusion that the testimony of Shirley John is completely incredible. The majority blithely and unceremoniously brushes aside the story that she waited on the accused and the complaining witness at a restaurant far beyond the beaten path to the latter’s home. If they were actually at that restaurant, serious doubt is cast upon the entire testimony of Ensign W.
Maybe the accused was lax in his preparations for trial; and it is true that some delay and expense would be involved in a second trial, but the penalty here is so severe, and the whole picture in the case is so shrouded in mystery and suspicion, that, in my opinion, we would more nearly approximate our obligations, to wit, “to do substantial justice,” by granting a new trial. Now it would be fairly simple to determine all the facts upon which a new court could justly and intelligently decide the issue.