delivered the opinion of the conrt.

The government moves to dismiss because the appellant has not filed the brief in time. The attorney for the appellant answers that he failed to file the brief in time because he was laboring under a mistaken impression as to the date on which the term expired and now presents his brief. Under the circumstances, we have done what we frequently do, examined the brief to see whether the case is meritorious.

The theory of the defense apparently was that in a case of rape the woman involved was incapable of giving her consent because she was mentally afflicted; that nevertheless the district. attorney put her on the stand as a witness against the defendant and that her testimony necessarily affected the case. The appellant presents the apparent dilemma that if the prosecutrix was able to testify she was also able to consent and that if she was not able to consent she was similarly not a proper -witness. We are not convinced that a woman may not be incapable of giving her consent and yet might not be so entirely unbalanced as to be unable to give testimony. 9 Nor are we convinced that the question ought not to *87have been first raised in the court below. As, however, the question has not been fully argued before us we shall refuse to dismiss the case and it is so ordered.