(concurring in part and dissenting in part):
I concur in Parts, I, II, and III of the court’s opinion. I dissent from Part IV. I do not think we should decide, without remanding for further inquiry, that the denial of appellant’s right to a preliminary hearing did not prejudice his defense. The court cites, as grounds for concluding that appellant was not prejudiced, the facts that appellant’s *902counsel did not object at trial to the absence of preliminary hearing and that counsel did not argue in this court that appellant was prejudiced by that absence. But, as the court acknowledges, counsel could reasonably believe that under then-prevailing case law such objection would be futile. Hence his failure to object was excusable. And in raising the objection for the first time in this court, counsel understandably did not argue that appellant was prejudiced by the absence of a preliminary hearing, because this was a question of fact or mixed law and fact which an appellate tribunal could not resolve without the benefit of findings from the District Court.
Were this court to affirm the conviction on a finding not considered below, the defendant would in effect be deprived of [the] right [of appeal], for our finding, in the first instance, on the mam issue, would be subject to review only on the grant of certiorari by the Supreme Court. [Quinn v. United States, 91 U.S.App.D.C. 344, 349, 203 F.2d 20, 25 (1952) (en banc), reversed on other grounds, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964 (1955).]