concurring in part, dissenting in part.
I concur with respect to the grand jury question and the validity of the subcommittee, but would grant a new trial so that the trier of the facts may apply the principles laid down today in No. 11081, Quinn v. United States.
BAZELON, Circuit Judge, with whom EDGERTON, Circuit Judge, concurs, dissenting.
The court affirms the ruling below that appellant did not invoke the privilege against self-incrimination under the Fifth Amendment. I do not reach that issue because, as the record shows, appellant did state some grounds,1 not plainly frivolous, for his objection to answering. Under the view I expressed in Bart and Quinn, there could be no valid conviction unless the trial' court found “from all the circumstances, that (1) the witness was clearly apprised * * * whether the grounds for his objection to answering were accepted or rejected, and that (2) if rejected, he was given another opportunity to answer.”2 Although Judge CLARK’S opinion alludes to this problem, it neither meets nor discusses it.3
By agreeing with the Subcommittee chairman that appellant’s “conduct disclosed a flagrant attitude toward the committee,” 4 the trial court did not avoid the necessity for determining whether or not the witness had been “clearly apprised.” Concededly the record reveals matters which might be said to reflect an adverse ruling by the Committee on the appellant’s objections.5 But these matters are not *61conclusive. And we should not on appeal invoke our judgment to resolve a factual conflict on an essential element of the crime — namely, intent to violate the statute.6 That is the function, in the first instance, of the court below. Since I am not convinced from an examination of the entire record that the court below, sitting without a jury, took the correct view of the governing principles, I would reverse for a new trial.
I would reverse and remand for an additional reason. The trial court erred in denying appellant’s request for a hearing in connection with his attempt to show that Government employees were disqualified as grand jurors in this particular case. I 15ive set forth the reasons for this view in Quinn v. United States,7 where the same issue arose under identical circumstances.
. He at least claimed protection of Hirst Amendment rights and lack of pertinen-cy. J.A., p. 168.
. Quinn v. United States, 91 U.S.App.D.C. 344, 203 F.2d 33.
. 91 U.S.App.D.C. 378, 203 F.2d 56, 57.
. J.A., p. 226.
. The indictment charges appellant with refusing to answer 68 questions in as many counts. After appellant stated the grounds for his objection to answering the question involved in Count 1, the following occurred:
“Mr. Tavenner [Committee counsel]. Your replies are a refusal to comply with tho request to answer it?
(Witness confers with his counsel.)
“Mr. Moulder [Subcommittee chairman], The record will reveal that you have not answered the question.” Hear-*61tags before the Committee on Un-American Activities, 81st Cong., 1st Sess. 839-40 (1949).
. 11 Stat. 155 (1857), as amended, 52 Stat. 942 (1938) 2 U.S.C.A. § 192.
. 91 U.S.App.D.C. 344, 203 F.2d 20.