¶1dissenting. There is much proof in the record to indicate that the attorney in question was intoxicated during the trial of this case. In addition to the matters mentioned by the majority, such as his failure to call witnesses and his profane abuse of his client, there is testimony that he gave the appearance of being intoxicated and that after the trial he admitted that he had been too drunk to try the case. Of much significance is the fact that this attorney did not appear at the hearing upon the motion for a new trial, when he would have had an opportunity to deny the accusation of professional misconduct.
¶2In a situation of this kind I think we should be almost overserupulous in protecting the judicial system from even a suspicion of unfairness and injustice. It is the judiciary which has held this lawyer out to the public as being competent to practice law, and I think our responsibility goes beyond saying that he tried the case pretty well even though he was drunk. I would treat this trial as voidable and give the appellant the option either of accepting the sentence imposed or of waiving his plea of double jeopardy and consenting to a retrial upon the original charge of rape.