¶1 (specially concurring). I concur in the result in this case because it seems to me that the uncertainties of the record are such that a new trial may well be had in the interests of justice. • I am unable to concur, however, in what is said with respect to the requirements of proof placed upon the' complainant.
¶2 As I understand the record the child in this case was born on April 7. The complaining witness testified that she had had intercourse with the defendant during the first week of August preceding its birth, and that she had not had intercourse with anyone else for a very long time prior to that time. The defendant testified that he had never had intercourse with the complaining witness, though he' admitted he had been in her company during the month of August and thereafter. There is no evidence as to the appearance, size, or condition of the child at the time of its birth or as to whether it was premature or full term. According to the testimony of the complaining witness the period from her first act of intercourse with the defendant to the date of the birth of the child was from 240 to 250 days, or some 30 to 40 days less than the average period of gestation. If this was the truth then the defendant is the father of the child whether it was full term or premature. And the jury by their verdict found that it was the truth. Certain it is this was no immaculate conception. Nature is capricious. The stork does not fly on a regular schedule. He is notoriously erratic and may be days early or late without apparent reason or excuse. If the defendant wished to offer evidence other than his own to support his contention that he was not the father he might have done so, means permitting. He could, if it were the fact, establish that the child was full term. Then the jury might have been appropriately instructed and their verdict might have been different. But the burden was not on the State to show by further evidence that the child was premature *572 since there was no challenge to the State’s case other than the defendant’s denial of intercourse.