EDGERTON, Senior Circuit Judge:
Judges Bazelon, Fahy, Washington, Wright, and McGowan concur in parts I, II, and VI of this opinion. These parts are the opinion of the court. Judges Bazelon, Fahy, and Wright join in parts III, IV, and V, which are not the opinion of the court.
Willie Lee Short and David Jones appeal from convictions of assault with intent to rob. D.C.Code § 22-501. Short, David Jones and Arthur Jones appeal from convictions of robbery. D.C.Code § 22-2901. The crimes were alleged to have occurred on August 3 and July 28, 1962.
A warrant for Short’s arrest was issued in the District of Columbia in August, 1962. On Thursday, September 13, police in Raleigh, North Carolina, arrested him on a state charge, notified the District of Columbia police, and got from Short a signed “waiver of extradition.” On Saturday, September 15, Detective Sergeant O’Bryant of the District of Columbia police arrived in Raleigh with the warrant and wrote on it: “Arrested 9-15-62 10:30 AM Sheriff’s Office Raleigh N.C. Det. Sgt. Tilmon B. O’Bryant.”
By 11:00 AM O’Bryant had begun to question Short. At first he denied all guilt, but according to O’Bryant’s testimony on cross-examination he “admitted his participation” within 2 or 3 minutes. O’Bryant questioned him about an hour and a half or two hours before he began making confessions which O’Bryant typed.
On Sunday, September 16, O’Bryant brought Short to the District of Columbia. On Monday morning Short was taken for the first time before a committing magistrate, who appointed a lawyer to represent him. The lawyer talked with him five or ten minutes and told the judge he waived preliminary hearing. Short did not know what this meant. He could not make bond and was taken back to jail. Fifteen days later, on October 2, he was taken before a grand jury and questioned. The confessions typed in North Carolina were read and he confirmed them. Indictments followed. The confessions were admitted in evidence at the trials.
I
Rule 40(b), F.R.Crim.P., requires that a person “arrested upon a warrant issued in another state * * * shall be taken without unnecessary delay before the nearest available commissioner or a nearby judge of the United States in the district in which the arrest was made” who “shall inform the defendant of the charge against him, of his right to retain counsel and of his right to have a hearing or to waive a hearing by signing a waiver before the commissioner or judge. The commissioner or judge shall also inform the defendant that he is not required to make a statement and that any statement made by him may be used against him, shall allow him reasonable opportunity to consult counsel and shall admit him to bail as provided in [865] these rules.”1
2There was no compliance with this Rule.
When O’Bryant, in the Sheriff’s office in Raleigh, wrote on the warrant: “Arrested 9-15-62 10:30 AM”, it was his duty to take Short “without unnecessary delay” before a magistrate who would advise him of his rights. Instead, O’Bryant questioned him at length. O’Bryant “did not see any need to take him before a committing magistrate in the State of North Carolina” and made no effort to do so. In oral argument of this appeal the government conceded that Rule 40(b) should have been and was not complied with.
Though Short had been in the custody of state officers, at some time he became O’Bryant’s prisoner. There is no evidence that this time was later than 10:30 AM, when O’Bryant wrote “Arrested” on the warrant, or that the state officers who then allowed him to question Short in violation of law would not have allowed him to take Short before a magistrate in compliance with law. He testified that the state officers were “most hospitable”.2 “Unnecessary delay”, therefore, began not later than 10:30 AM and included' the time some two hours later when O’Bryant began typing the confessions that were introduced in evidence at the trials.
Some delay for the purpose of questioning an arrested person to determine whether he should be held or released has sometimes been thought “necessary”. But this assumes some appropriate purpose for the delay other than obtaining a confession, as in Metoyer v. United States, 102 U.S.App.D.C. 62, 250 F.2d 30 (1957) , and Heideman v. United States, 104 U.S.App.D.C. 128, 259 F.2d 943 (1958) , where “inquiry to make sure that the police were not charging the wrong persons” (Heideman, 104 U.S.App.D.C. at 130, 259 F.2d at 945) seemed appropriate. It has nothing to do with this case. O’Bryant did not go from the District of Columbia to North Carolina with the arrest warrant in his pocket for any such purpose. He well knew that Short was to be held. He had no authority to release him. Moreover O’Bryant testified that Short made an oral confession within “two or three minutes.” The government does not challenge the trial judge’s findings that the purpose of O’Bryant’s interrogation of Short was “to get a confession out of him.” Before he began to write, he subjected Short to an hour and a half or two hours of questioning for the purpose of getting the confessions which O’Bryant typed and which were introduced in evidence. The time lag occurred not while the statements were being typed but before the typing began. There is nothing to take this case out of the McNabb-Mallory rule that “a confession is inadmissible if made during illegal detention due to failure promptly a carry a prisoner before a committing magistrate”. Upshaw v. United States, 335 U.S. 410, 413, 69 S.Ct. 170, 93 L.Ed. 100 (1948). Short’s confessions should not have been admitted in evidence.3 His convictions must therefore be reversed.
[866] II
In each trial, Short’s confession was read to the jury with “name” nr “named person” substituted for the names of the Joneses. But as the Supreme Court has said, other testimony may make it impossible for such a device to divert incrimination from the confessor’s co-defendants to “an anonymous nobody”. Stein v. New York, 346 U.S. 156, 194, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953). In the present case, other testimony about David and Arthur Jones made it obvious that the omitted names were theirs. Short’s illegally obtained confessions therefore prejudiced them as well as him.
As against a confessor’s co-defendants, the confession is inadmissible hearsay. [867] In accordance with time-honored custom,4 the trial judge cautioned the jury that a confession is evidence only against the confessor. But no jury can forget one defendant’s confession in considering the case of a co-defendant whom it implicates. Speaking for the Second Circuit, Judge Learned Hand called the time-honored custom a “subterfuge”. He said: “There is no reason why the prosecution if it chooses to indict several defendants together should not be confined to evidence admissible against all.” But he said the “rule probably furthers, rather than impedes, the search for truth, and this perhaps excuses the device which satisfies form while it violates substance; that is, the recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody else’s.” Nash v. United States, 54 F.2d 1006, 1007 (1932). As this statement suggests, the theory behind the subterfuge probably is that a confession is such valuable evidence against the confessor that sound policy permits its use at a joint trial, despite the harm it does to the confessor’s co-defendants who ought to have the protection of the hearsay rule. In 1957 the Supreme Court sustained a co-defendant’s conviction where (1) the confession was admissible against the confessor, (2) it was impractical to delete references to the co-defendant, (3) there was enough other evidence against him to sustain his conviction, and (4) the time-honored admonition to the jury was clearly and repeatedly given.5
Since Short’s confessions were not admissible even against him, there is no reason whatever for permitting them to prejudice his co-defendants. And the purpose of the McNabb-Mallory rule, to discourage prolonged questioning in order to get a confession before the suspect is told of his rights by a magistrate, would be defeated as much by allowing a wrongly obtained confession to be used against co-defendants as by allowing it to be used against the confessor himself. It follows that the convictions of the Joneses as well as the convictions of Short should be reversed.
In Anderson v. United States the Supreme Court held that admission in evidence of illegally obtained confessions of some defendants vitiated the convictions of all. One ground of the decision was that the judge’s charge allowed the jury “to assume that in ascertaining the guilt or innocence of each defendant they could consider the whole proof made at the trial.” 318 U.S. 350, 356-357, 63 S.Ct. 599, 87 L.Ed. 829 (1943). But in the later case of Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945), in sustaining a state court conviction where a co-defendant’s coerced confession had been introduced at a joint trial, the Supreme Court distinguished Anderson primarily on the ground that it dealt with “a criminal proceeding in a federal District Court over which we have more control than we do over criminal trials in the state courts”, and only secondarily (“Moreover”) on the ground that it involved an erroneous instruction to the jury. 324 U.S. 401, 411, 412, 65 S.Ct. 781 (1945). Since the present appeals, like Anderson, involve “a criminal proceeding in a federal District Court”, the co-defendants’ convictions should be reversed as in Anderson, not affirmed as in Malinski.
Ill
We said in 1955: “No doubt it would be a boon to prosecutors if they could summon before a Grand Jury a person against whom an indictment is being sought and there interrogate him, isolated from the protection of counsel and presiding judge and insulated from the critical observation of the public. But •there is a serious question whether our jurisprudence, fortified by constitutional declaration, permits that procedure.” [868] Powell v. United States, 96 U.S.App.D.C. 367, 372, 226 F.2d 269, 274. We think this question should be answered in the negative. We cannot reconcile that procedure, which was used in this case, with the Fifth Amendment guarantee that “No person shall be compelled in any criminal case to be a witness against himself.”
Like a trial, a grand jury investigation of a crime is “a criminal case” at which incriminating questions need not be answered. Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). At a trial, putting the accused on the witness stand without his consent and asking him anything at all would violate his constitutional privilege against self-incrimination.6 We think taking him before the grand jury without his consent and asking him anything violates his privilege. This is perhaps implicit in the Supreme Court’s action in Lawn v. United States, infra, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). If it is not and ours is a minority view,7 as the New York Court of Appeals said in a different connection “We may as well disregard the weight of authority elsewhere and start with a rule of our own, consistent with practical experience. * * * Consistency requires us to go forward or to go back. We cannot go back. * * * The present distinction is indefensible.” Campbell v. New York Evening Post, 245 N.Y. 320, 157 N.E. 153, 52 A.L.R. 1432 (1927).
In Fisher v. United States, 328 U.S. 463, 476, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946), the Supreme Court said: “Matters relating to law enforcement in the District are entrusted to the courts of the District. Our policy is not to interfere with the local rules of law which they fashion, save in exceptional situations were egregious error has been committed.” The “Court, in its decisions, and Congress, in its enactment of statutes, have often recognized the appropriateness of one rule for the District and another for other jurisdictions so far as they are subject to federal law.” Griffin v. United States, 336 U.S. 704, 712, 69 S.Ct. 814, 93 L.Ed. 993 (1949). The courts of the District of Columbia should not content themselves with enforcing the minimum standards which the Constitution requires. They should also set for the Nation an example of respect for the rights of citizens.
Mere interrogation before a grand jury may harm the accused as much as mere interrogation at a trial. Even if he makes “no direct incriminating statement, there is no way to know whether in fact his appearance was incriminating in the minds of some or all the members of the Grand Jury.” United States v. DiGrazia, 213 F.Supp. 232, 234 (N.D.Ill. 1963). His having been brought there may arouse suspicion. His manner and voice may arouse suspicion. Because grand jury investigations are secret, as we said in Powell he is “isolated from the protection of counsel and presiding judge and insulated from the critical observation of the public.” Though he may be unqualified, as Short was, to decide for himself what questions to answer, he must decide at his peril. If he answers incriminating questions he may make it certain, as Short did, that he will be indicted. And testimony before the grand jury may be used, though Short’s was not, to impeach his testimony at trial.8 If he refuses to testify at all, or to answer some questions on the ground that answers might incriminate him, the grand jury may draw conclusions. If he refuses to answer questions that are not incriminating, he may be guilty of contempt. The prosecutor read aloud the confessions that O’Bryant had typed, and asked Short if they were his and were true. He acknowledged that they were. Apparently little other evidence [869] was presented,9 but the grand jury indicted him. He was plainly prejudiced by the interrogation.
Short did not validly waive his right not be taken to the grand jury and questioned. “ ‘Courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A waiver is not valid unless it is intelligently made. An “intelligent waiver * * * must depend, in each case; upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.” Ibid. Short is an indigent young Negro whose schooling stopped with the third grade. Cf. Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Williams v. Huff, 79 U.S.App.D.C. 326, 146 F.2d 867 (1945). He cannot read and can barely write. The police found it necessary to read and explain to him twice a simple form for waiving extradition. No one told him, before he was taken to the grand jury, what a grand jury was or what his rights before it would be, although the committing magistrate and the police had told him in general terms that he need not “incriminate himself.” Even if the government officers had explained things to him as fully as possible, he would still have been incapable of an intelligent waiver without the advice of counsel. Cf. Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957). Even an “intelligent, mentally acute” defendant should not “be dependent upon government agents for legal counsel and aid, however conscientious and able those agents may be.” Von Moltke v. Gillies, 332 U.S. 708, 720, 725, 68 S.Ct. 316, 92 L.Ed. 309 (1948).
Moreover, in our view Short gave no consent, not even an unintelligent one, to be taken before the grand jury on October 2. His actual state of mind is irrelevant, since a state of mind that is not expressed or implied by words or conduct has no legal effect. He was not asked on October 2, or even shortly before that day, whether he wanted to go before the grand jury.10 He was taken in handcuffs. He had been in jail almost three weeks. Prisoners frequently acquiesce in orders or suggestions, and “true consent, free of fear or pressure is not so readily to be found.” Judd v. United States, 89 U.S.App.D.C. 64, 66, 190 F.2d 649, 651 (1951).11
When Short was actually facing the grand jury it was too late for any warning to mean much. The warning the prosecutor gave him in the grand jury [870] room would have been inadequate to protect his rights even if Short’s presence had been voluntary. The prosecutor told him he was “before the Grand Jury” but did not tell him in what business the grand jury was engaged. The prosecutor told him he need not answer questions and that answers could be used against him “at any future trial”, but did not tell him the grand jury would use his answers to decide whether to indict him. The prosecutor did not tell him he was entitled to consult counsel before being questioned.
IV
Short’s Sixth Amendment right “to have the Assistance of Counsel for his defense” was withheld. The right to counsel does not begin at trial. If it began then it would often be worth little, for cases are often lost at earlier stages. The accused “requires the guiding hand of counsel at every step in the proceedings against him.” Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932).12 This is a constitutional principle, not a mere factual observation. Accordingly the accused is entitled to counsel at arraignment. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); Evans v. Rives, 75 U.S.App.D.C. 242, 250, 126 F.2d 633, 641 (1942). He is entitled to counsel at preliminary hearing, at least if he is then called upon to plead. White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Wood v. United States, 75 U.S.App.D.C. 274, 128 F.2d 265, 141 A.L.R. 1318 (1942). He is entitled to counsel on appeal. Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958).
Congress has implemented the constitutional right to the assistance of counsel. The District op Columbia Code provides in § 2-2202 that the Legal Aid Agency “shall make attorneys available to represent indigents in criminal proceedings in the United States District Court for the District of Columbia and in preliminary hearings in felony cases”, and that each court “will make every reasonable effort to provide assignment of counsel as early in the proceedings as practicable.” Rule 44 of the Federal Rules op Criminal Procedure provides that “If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel.” Criminal Rule 24 of the Court of General Sessions is in the same words.
Indictment is a crucial “step in the proceedings against” the accused. The right which he has at other crucial stages does not jump the time just before indictment. In this case the committing magistrate, a judge of the Court of General Sessions, had appointed counsel for Short in accordance with that court’s Rule 24.13 When Short was about to be taken to the grand jury for questioning he badly needed to consult his counsel. But the government prevented him from doing so, by not informing counsel that Short was to be questioned.
The committing magistrate determines, after a preliminary hearing unless the accused waives hearing, whether he should be held to await action of the grand jury. It is counsel’s duty “to represent him at every stage of the proceeding” as Rule 24 requires. Any practice of assigning a lawyer for the few moments the accused is before the magistrate and no more would mock the requirement of assistance of counsel. The appointment must continue until the prosecution is terminated or other counsel is appointed, which should normally be before arraignment. Except in rare emergencies no lawyer should be asked to accept a truncated appointment. There is no contention that Short’s counsel, either with or without notice to [871] Short, obtained leave of court to withdraw. Unauthorized withdrawal cannot be tolerated. Judge Prettyman agrees with the views expressed in this paragraph.
The Sixth Amendment right to counsel is violated if a confession obtained by questioning an uncounseled defendant after indictment is used against him in a United States court. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964)14 In that case, three Justices pointed out in a dissenting opinion that the Court's reasoning “would seem equally pertinent to statements obtained at any time after the right to counsel attaches, whether there has been an indictment or not * * * ” (377 U.S. at 208, 84 S.Ct. p. 1204). In New York, a defendant’s voluntary statement obtained in the absence of counsel after preliminary hearing and before indictment has been held inadmissible. People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103 (1962). The Fifth Circuit has said: “No one can dispute the truth of Professor Chafee’s statement, ‘A person accused of crime needs a lawyer right after his arrest probably more than at any other time.’ It would not be unreasonable therefore to recognize an accused’s right to counsel from the moment of arrest.” Lee v. United States, 322 F.2d 770, 778 (1963). The New York Court of Appeals now recognizes that right. Judge Fuld said for that court, “One of the most important protections that counsel can confer while his client is being detained by the authorities is to preserve his client’s privilege against self-incrimination and prevent the deprivation of this and other rights which may ensue from such detention.” People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841,193 N.E.2d 628 (1963).
Finally, in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), the Supreme Court held that in the particular circumstances of that case the accused was constitutionally entitled to counsel during police questioning before indictment. Though the Court’s express ruling was no broader than the facts, which were different from the facts of our case, the underlying principle that the right to counsel begins before indictment applies here.
By failing to inform counsel of the impending examination, the prosecution deprived Short of his assistance at a crucial time and greatly to Short’s prejudice. Counsel might even have succeeded in preventing him from being taken before the grand jury. In general, “secret, ex parte interrogations of defendants are not conducted when a prisoner has counsel. * * * This practice carries secret questioning to the point of invidious discrimination against indigent defendants.” Lee v. United States, 322 F.2d 770, 777 (5th Cir. 1963). Though counsel could not have gone before the grand jury with Short he could have given him valuable advice in advance as to what questions, if any, he should answer when he was taken there. It is most unlikely that Short would have repeated his former confessions there if he had been counseled. Counsel might have advised him that those confessions were illegally obtained and could not be used in any trial.15
V
Since an indictment obtained in violation of federal constitutional rights must [872] be dismissed,16 at least where substantial prejudice resulted, the violations of Short’s privilege against self-incrimination and of his right to the assistance of counsel make it necessary to dismiss the indictments against him. This is quite independent of the fact that his written confessions, which were read to the grand jury, were obtained in violation of the McNabb-Mallory rule.
We see neither reason nor authority for distinguishing between unconstitutional composition of a grand jury, as in Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950), and unconstitutional proceedings of a grand jury, as here, although the Supreme Court has used broad language to the effect that “An indictment returned by a legally constituted unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits.” Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956); repeated in Lawn v. United States, 355 U.S. 339, 78 S.Ct. 811, 2 L.Ed.2d 321 (1958). The context in each of these two cases shows that this broad language applies only when grand jury proceedings have not violated constitutional rights.
The petitioner Costello had urged that an indictment based solely on hearsay evidence violated the Fifth Amendment requirement that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * 350 U.S. at 361, 76 S.Ct. 406. In rejecting this contention the Supreme Court used the broad language quoted above and immediately added “The Fifth Amendment requires nothing more”,. i.e., nothing more than an “indictment returned by a legally constituted and unbiased grand jury, * * * if valid on its face”. 350 U.S. at 363, 76 S.Ct. 4060. This means that the grand jury clause of the Fifth Amendment “requires nothing more”. No other constitutional question was before the Court. We do not understand the Court’s opinion to say anything about any other constitutional question. Due deference forbids us to interpret the opinion as containing a vast dictum to the effect that the entire Constitution, including all its Amendments, “requires nothing more”; in other words, that the proceedings of a legally constituted and unbiased grand jury may violate any number of the defendant’s constitutional rights, including his right to the assistance of counsel and his privilege against self-incrimination, without affecting the validity of the indictment. Costello, therefore, is no bar to our view that an indictment obtained in violation of constitutional rights must be dismissed. On the contrary, Costello substantially supports this view. For the Supreme Court affirmed the conviction of Costello on the ground that the grand jury’s action in indicting him had not violated his constitutional rights. The Court thereby implied that if the grand jury’s action had violated his constitutional rights, the indictment would have been invalid and the conviction would have been reversed.
At a former trial in Lawn the District judge had dismissed indictments, largely on the ground that compelling prospective defendants to appear for questioning before a grand jury was analogous to compelling them to appear in a criminal trial, though the judge also noted, as we do in this case, that there had been no adequate warning. 115 F.Supp. 674 (1953). Lawn and his co-defendants were afterwards re-indicted for similar crimes and convicted. In the Supreme Court they claimed that the evidence obtained from them in the first grand jury proceeding was used against them in the second grand jury [873] proceeding. The Supreme Court said: “We deal here only with the question whether petitioners, in the circumstances of this case, were entitled to a preliminary hearing to enable them to satisfy their unsupported suspicions that the 1953 grand jury that returned this indictment made direct or derivative use of the materials which they produced before the 1952 grand jury. We hold that they were not.” 355 U.S. at 350, 78 S.Ct. 311.17 This seems to indicate that if the “unsupported suspicions” had been facts, the second indictment would have been invalid and the resulting convictions would have been reversed.
VI
In United States v. Tane, 329 F.2d 848, decided by the Court of Appeals for the Second Circuit on March 24,1964, a District Court had dismissed an indictment on the ground that it resulted from illegal wire tapping. The government’s brief on appeal in that case conceded that “where, as here, the indictment rests almost exclusively on challenged testimony, if the challenge is sustained, the indictment may be dismissed.” (p. 2). The Court of Appeals held that dismissal of the indictment was within the District Court’s discretion and that, in the light of the government’s concession, discretion had not been abused.
The record before us in the present case does not show, and the District Court did not determine, what testimony tending to support the indictments, other than Short’s confessions, was before the grand jury. Judges Washington and McGowan think the District Court should determine that question and should then decide whether the indictments of Short should be dismissed. Irrespective of any constitutional question, they think that on this record the taking of the un-counseled defendant before the grand jury should not be countenanced by us in the exercise of our supervisory power over the administration of criminal justice in the District of Columbia.18 So that there may be a majority, Judges Bazelon, Fahy and Wright and I join Judges Washington and McGowan in thus disposing of the dismissal matter for the present, although we think, as we have shown in parts III, IV and V of this opinion, the indictments should now be dismissed, not merely because of our supervisory power but because Short’s compelled appearance before the grand jury violated his right against self-[874] incrimination and because his right to counsel was violated by failure to notify his lawyer that he was to appear.
All the appealed convictions are reversed and the cases are remanded to the District Court for further proceedings consistent with parts I, II, and VI of this opinion. Less than a majority of the court think our ruling in part VI should have retroactive as well as prospective application. That ruling is therefore limited to the present case and cases in which indictments are hereafter found or sought. Compare Durham v. United States, 94 U.S.App.D.C. 228, 240, 214 F.2d 862, 874, 45 A.L.R.2d 1430 (1954).
Reversed and remanded.