¶1(dissenting).
¶2In my opinion this matter should be remanded to the trial court for further proceedings or the appeal should be dismissed as improvidently granted for the following reasons:
¶3*387I. The State's application to dismiss the order for a psychiatric examination of the complaining witness was set for hearing on October 30, 1968. At the time of hearing no one appeared for or on behalf of the State. Defendant appeared and was prepared to supplement his request for the order requiring a psychiatric examination of the complaining witness. Defendant's supplemental affidavits, dated October 30, 1968, show:
a. The complaining witness testified falsely at the preliminary hearing concerning prior psychiatric care;
b. The complaining witness had received treatment for mental illness on an initial complaint of "sex and marital difficulties" and was taking drugs for her condition;
c. She was in need of further treatment, but withdrew from the South Dakota Mental Health Center;
d. According to the Director of the Mental Health Center the complaining witness could, in his opinion, falsely accuse defendant because of her mental health condition and further examination of her was imperative in order to determine this question.
¶4As the State did not appear at the hearing on October 30 this supplemental showing was never presented or considered by the court. On January 24, 1969 the State, without notice to defendant, obtained an Order Denying the State's Motion to Dismiss. The State was granted permission to appeal from this intermediate order.
¶5The supplemental showing made by defendant would appear to be a "substantial showing of need and justification" for the psychiatric examination of the complaining witness .before trial as required by State v. Klueber, 81 S.D. 223, 132 N.W.2d 847. On remand it could be considered.
¶6II. Furthermore, it appears the complaining witness is now a patient at the State Hospital receiving treatment for mental illness which renders the issues moot.
¶7*388III. The majority opinion merely compounds the procedural confusion in this case and denies defendant an opportunity to have his supplemental showing heard and the right to have the complaining witness psychiatrically examined.