(concurring).
I agree that, for the reasons stated in my colleagues’ opinion, denial of appellant’s motion was not appealable as a final decision under 28 U.S.C.A. § 1291. I do not, however, wish my participation in this decision to be taken as implying a belief that, in a case of this nature, the appeal should not be treated as a petition for mandamus1 or that, in appropriate circumstances in a criminal action, a writ of mandamus ordering the District Court to decide the motion on its merits, should not issue.2 I place my concurrence solely *880on the ground that, on the facts as alleged by appellant, he will not suffer such irreparable harm or danger, from denial of his motion below, as would warrant the issuance of a prerogative writ in cases of this sort.
The District Judge ruled that defendant could not contest in absentia the validity of an indictment, brought for failure to report for induction under 50 U.S. C.A.Appendix, § 462, without first surrendering himself. This order has the effect of requiring defendant to travel thousands of miles to procure the quashing of an indictment which (if what he says is true, as we must assume for the purposes of this decision) should be set aside on the basis of documents in the possession of the government and which, on the present record of the case before us, must be deemed to be maintained by the government solely for the purpose of harassment and annoyance.
In order to convict the defendant the government, as it concedes in its brief, would have to prove that he was a United States citizen at the time he was due to report for induction. Under the provisions of 8 U.S.C.A. § 1481, a citizen of the United States may lose his citizenship by making formal renunciation of nationality before a diplomatic or consular officer in the form provided for by the Secretary of State. Appellant alleges —and the government does not deny— that he made such formal renunciation two days before he was scheduled to report for induction. If this is true — and it seems hardly likely that appellant would make such an allegation if it were not true, since the records of this renunciation would be in the possession of the State Department — it would appear that he was not a citizen at the time he was to report for induction and that therefore the government could not in good faith bring him to trial on the indictment.
I do not believe there is any authority for the District Judge’s ruling that, invariably, a defendant must incur the expense of a many-thousand-mile journey to submit himself to the jurisdiction of the court, in order to have an indictment quashed. It is true that the Supreme Court in Eisler v. U. S., 1949, 838 U.S. 189, 69 S.Ct. 1453, 1454, 93 L.Ed. 1897, refused to hear an appeal from a conviction on the ground that the petitioner, by his flight after conviction, “by his own volition may have rendered moot any judgment on the merits.” But this appellant can scarcely be considered a fugitive in the position of appellant in Eisler, or the appellants in Allen v. Georgia, 1897,116 U.S. 138, 17 S.Ct. 525, 41 L.Ed. 949, and U. S. v. Gilmore, D.C. N.D.W.Ya.1953, 113 F.Supp. 510. Before leaving the United States the defendant duly registered under the Universal Military Training and Service Act. He departed for Thailand with the permission of his draft board and notified the board of his destination, and he alleges that, before leaving, he offered himself for induction into the Armed *881Services and was not accepted. I think we cannot reasonably apply (a) the rationale of cases in which courts refused to hear an appeal because the appellant fled the jurisdiction while his appeal was pending to (b) an instance where a motion is made to quash an indictment brought against a non-citizen after he lawfully left the country.
True, appellant seeks to set aside an indictment, not on the ground that the indictment is invalid on its face, but because unimpeachable evidence would show that the indictment should never have been brought because there has been absent from the start a vital prerequisite to penal liability. I do not, however, subscribe to the view that, on a motion to quash, defendant is limited to showing that the indictment is invalid on its face. As Judge Learned Hand stated in United States ex rel. Scharlon v. Pulver, 2 Cir., 1931, 54 F.2d 261, 264:
“Suppose for example that [the accused] could prove by unimpeachable contemporaneous documents that at the time [charged in the indictment] he was physically incapable of committing the crime, as for example, that he was in the hospital recovering from an operation. No commissioner who rationally considered such evidence at all, could fail to discharge him.”
See also United States v. Masaaki Kuwa-bara, D.C.N.D.Cal.1944, 56 F.Supp. 716 where a motion to quash an indictment was granted by the District Court, the motion being predicated on physical inability to report for a preinduction physical examination since, at the time charged, defendant was confined in a detention camp by the government.
Accordingly, I think the District Court in this case had the power and duty to decide the merits of the motion on the basis of the documents. I concur, however, on the ground that, on the facts as stated by appellant, he had such an open- and-shut case, based on papers in the possession of the State Department, that it is doubtful whether the government would attempt to bring him to trial if and when he returns to this country, and that, in the event that it did, he could no doubt have the case summarily dismissed at any time. Therefore, I do not think appellant is placed in such jeopardy by the decision below as to warrant the issuance of a prerogative writ. On the other hand, in a case where there was a risk that the documents might be destroyed or lost before the defendant returned, or where his motion to quash would be based on testimony of witnesses or other evidence which might become unavailable in the interim, I am not willing to say that a writ of mandamus should not issue, ordering the District Court to decide the motion immediately and in appellant’s absence.
. Judge Learned Hand and I have both protested the view, adopted by this court in civil cases, that the form of the papers is controlling and that when the case comes before us labeled “appeal” wo cannot consider it as an application for a prerogative writ. I have felt constrained to follow the precedents laid down by this court in this respect. See Magnetic Engineering & Manufacturing Co. v. Dings Manufacturing Co., 2 Cir., 1949, 178 F. 2d 866, 870; United States ex rel. Sutton v. Mulcahy, 2 Cir., 1948, 169 F.2d 94, 97; Zamore v. Goldblatt, 2 Cir., 1953, 201 F.2d 738. 739. When doing so, however, I have protested the irrationality involved in the exaltation of labels by this court when at the same time we have rejected antiquated procedural teelmicalism on the trial court level. See dissenting opinions in Zamore v. Goldblatt, supra, 201 F.2d at page 739; Magnetic Manufacturing Co. v. Dings Manufacturing Co., supra, 178 F.2d at pages 870, 871. Moreover, the Supreme Court has just recently indicated that it will disregard the form in which an appeal is taken or sought to be taken, treating “appeal” papers as petitions for certiorari. Nunn v. California, 77 S. Ct. 126, and Pocatello Building & Construction Trade Council v. C. H. Elli Construction Co., 77 S.Ct. 130, both decided November 5, 1956.
In any event, as I have repeatedly stated, I do not feel bound by our precedents in criminal cases where I think they are wrong and are adverse to the accused. U. S. v. Scully, 2 Cir., 225 F. 2d 113, 118-119; U. S. v. Gonzales Castro, 2 Cir., 228 F.2d 807, 808, at page 810. I would not do so here.
. The Supreme Court has several times indicated its reluctance to review, in criminal cases, orders which are not “final.” It should be noted that the rationale behind the requirement of finality has been that “ * * * encouragement of delay is fatal to the vindica- . tion of the criminal law.” Cobbledick v. *880U. S., 1940, 309 U.S. 323 at page 325, 60 S.Ct. at page 541. Such reasoning is inapplicable in a case where, due to absence of the accused, trial on the merits might take place many years hence. So, in this case, review of a non-final order by prerogative writ would speed up rather than delay a final adjudication. It is also true that the Supreme Court often, and as recently as Parr v. U. S., 351 U.S. 513, at page 520, 76 S.Ct. 912, has held that the power to issue extraordinary writs is discretionary and to be sparingly exercised. However, in Parr the Court noted that the application for a writ of mandamus was not presented, on the issue in question, to the Court of Appeals and was made for the first time to the Supreme Court. Professor Moore has noted that courts of appeals might well grant extraordinary writs where the Supreme Court would be justified, by press of business and other considerations, to refuse review. 6 Moore’s Federal Practice (2d ed.) p. 73; Goldblatt v. Inch, 2 Cir., 203 F.2d 79, 80, particularly footnote 3. Therefore, even if the Supreme Court had denied mandamus in a case on all fours with this one, I would incline to take the position that this court could exercise its discretion as to the granting of the writ.