(dissenting) :
Appellant was charged with murder and brought before the U. S. Commissioner on October 12, 1964. The preliminary hearing was continued until October 28 in order to provide appellant with coun*657sel and to await the outcome of the coroner’s inquest. During the continuance, on October 19, the grand jury-indicted appellant. On the same day, the coroner’s inquest was held. Appellant’s counsel sought a continuance at the inquest to obtain subpoenas for additional witnesses. He asserted that it was not a proper hearing and that appellant was entitled to a preliminary hearing. In order to preserve his position, he refused to participate in the proceeding. Cf. Carter v. Schweinhaut, No. 19,044, Order of February 2, 1965. The coroner’s jury found that appellant was responsible for the victim’s death.
Immediately after the coroner’s inquest, the Government offered before the Commissioner to proceed with a preliminary hearing without further delay. Appellant’s counsel sought a one-week continuance. The Commissioner denied both requests and stated that the hearing would be held as originally scheduled, on October 23. On October 21 and again on October 23, the Commissioner denied appellant’s motions to subpoena six witnesses. The preliminary hearing was dismissed as moot by the Commissioner on October 23, because of the return of the indictment and because the inquest had been held.1 2Appellant sought a writ of habeas corpus in the District Court, following the procedure suggested in Blue v. United States, 119 U.S.App.D.C. 315, 321, 342 F.2d 894, 900 (1964), cert. denied, 380 U.S. 944, 85 S.Ct. 1029,13 L.Ed. 2d 964 (1965). The District Judge denied the writ and this appeal followed.
Although the majority opinion focuses on the precise facts of this case and the pretrial procedures made available to appellant, in my view the principal issue is whether the return of an indictment made a preliminary hearing unnecessary. The starting point for this inquiry is, of course, Fed.R.Crim.P. 5.2 The rule itself states only one condition on which the preliminary hearing can be dispensed with when the defendant is arrested under a warrant issued upon a complaint or without a warrant: if the defendant waives the hearing. If there is no intelligent waiver, the rule is mandatory in its terms: “the commissioner shall hear the evidence within a reasonable time.” (Italics added.)
The Government now argues that the preliminary hearing may be dispensed with if the defendant has been indicted prior to the date of the preliminary hearing. A similar argument was considered and rejected in Blue v. United States, supra. In Blue the appellant sought to have his convictions reversed because of the inadequacy of pretrial proceedings. *658Appellant had waived a preliminary hearing without being informed of his right to have counsel appointed. The court found that this uncounseled waiver was not a sufficient pretrial proceeding. The court refused to reverse Blue’s convictions only because he raised his objections on appeal and failed to show that he was prejudiced in his trial, and stated that the proper remedy was “by habeas corpus or mandamus prior to trial,” whether before or after indictment. Supra at 321, 342 F.2d at 900. The court stated that the denial of an opportunity for a defendant to consider intelligently the value of a pretrial hearing cannot
“be swept under the rug of a grand jury indictment. Neither do we think that the availability of a remedy should depend upon the outcome of a race between counsel seeking habeas corpus or mandamus and the grand jury acting upon the charge. We, therefore, conclude that relief in such a situation is not to be foreclosed solely by reason of an intervening indictment.” Supra at 320, 321, 342 F.2d at 899-900.
The meaning of this language is as clear as words can be. The position of the Government herein would invite the kind of race to the courthouse that Blue said must be avoided. Furthermore, taking the Government’s position, a defendant would run the risk of losing his right to a preliminary hearing if he sought a continuance in order to get assigned counsel. I do not think that the accused should be confronted with such a choice.
The Blue opinion states:
“It has generally been thought that the purpose of a preliminary hearing is to afford the accused (1) an opportunity to establish that there is no probable cause for his continued detention and thereby to regain his liberty and, possibly, escape prosecution, and (2) a chance to learn in advanee of trial the foundations of the charge and the evidence that will comprise the government’s case against him.” Supra at 322, 342 F.2d at 901. (Footnote omitted.)
While the return of an indictment might serve the first purpose, Blue made it clear that the second purpose is sufficiently important that a defendant is entitled to a preliminary hearing even after indictment. See also Washington v. Clemmer, 119 U.S.App.D.C. 216, 226, 339 F.2d 715, 725 (1964). The reasoning of Blue applies to either a “defective or omitted preliminary hearing.” Supra at 321, 342 F.2d at 900. Since a preliminary proceeding without advice of counsel is a ground for relief when timely raised, a fortiori, the denial of a hearing altogether is a ground for relief. It would be absurd to say that a defendant must have a full hearing if he has a hearing, but that he need not have any hearing at all.3 The court stated “that each stage along the way has its own intrinsic importance as well as a frequently significant relationship to the final result.” Supra at 320, 342 F.2d 899.
This is not a case where appellant is held under an indictment. His present custody is under a warrant issued pursuant to the original complaint (Fed.R.Crim.P. 4), and the writ is sought here to test that custody. It does not appear to me from the record that a warrant was issued to hold him pursuant to the indictment. The brief of the Government acknowledges this fact in suggesting that our grant of the writ would be “a useless act,” since appellant could then be arrested under a warrant issued pursuant to the indictment (Fed.R.Crim.P. 9); and he would then have no right to a preliminary hearing. But our reversal would not necessarily set the appellant free. The appropriate relief was indicated in Washington v. Clemmer, supra. Under similar circumstances, appellant brought habeas corpus to chal*659lenge the procedure followed in his preliminary hearing. This court reversed the District Judge’s denial of the writ and remanded with the instruction to issue a writ of habeas corpus returnable in two days, to become absolute at that time if a proper preliminary hearing had not been held prior to that date. We need not here consider whether a writ of habeas corpus so conditioned differs from a writ of mandamus ordering that a preliminary hearing be granted. In the present situation, such an order would be a grant of adequate relief. Such an order is not “a useless act.” 4
The majority distinguishes this case from Blue on the grounds that appellant was represented by an attorney during the pre-trial proceedings and that he had several opportunities — at the coroner’s inquest on October 19, before the Commissioner on the same date when the Government offered to hold an immediate hearing, and at the habeas corpus hearing —to discover the bases of the case against him. However, I do not think these differences are sufficient to distinguish the two cases.
The majority opinion appears to adopt the Government’s argument that other procedures, such as the coroner’s inquest, were an adequate substitute for a preliminary hearing. This argument seems to have two branches. First, the argument runs, the inquest is the functional equivalent of a preliminary hearing. The accused is entitled to one or the other, but the choice of which he gets is not in his hands. I do not agree. Rule 5 states that a defendant must have a preliminary examination before a commissioner or other officer who has the power to commit persons charged with offenses. The coroner has no such statutory power;5 so, at the literal level, the inquest cannot be a hearing sufficient to satisfy the terms of Rule 5. In several respects the inquest differs sharply from a preliminary hearing. An inquest is an informal, non adversary hearing before a doctor and a jury of six laymen. There is no requirement that the respondent (the potential defendant) be represented by counsel. In contrast, “[t]he preliminary hearing is an adversary judicial proceeding.” (Footnote omitted.) Washington v. Clemmer, supra at 228, 339 F.2d at 727 (1964). And we have held that a defendant has a right to counsel at the proceeding. Blue v. United States, supra6 See White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). At an inquest, only the coroner has the power to summon wit*660nesses; his power extends only to the boundaries of the District; and he summons only enough witnesses to satisfy the jury.7 The respondent in an inquest has no statutory right to put on his own evidence or to cross-examine the coroner’s witnesses.8 In contrast, in a Rule 5 hearing, the defendant has the right to subpoena witnesses under Rule 17. Washington v. Clemmer, supra. As a matter of right, he can cross-examine the witnesses against him and introduce evidence in his own behalf. Under these circumstances, it could hardly be argued that defendant is given an adequate substitute if the Government is free to give a defendant a coroner’s inquest rather than a preliminary hearing, at the prosecutor’s discretion.9
The other argument on the adequacy of the inquest suggests that the appellant in this case learned all that he could have learned in a preliminary hearing anyway; that in the inquest he got all that he was entitled to under Blue and Washington v. Clemmer; and that a preliminary hearing, in this case, is unnecessary. The Government cites our unpublished order in Carter v. Schweinhaut, No. 19,044, dated February 2, 1965; but it states only that “an inquest can be an effective substitute for a hearing before the Commissioner.” (Italics added.) But that order does not support the Government’s position in this case. The court there reviewed the full transcript of the coroner’s inquest, noted that defense counsel “actively participated in the hearing,” and found that the hearing held had “substantially afforded petitioner the opportunities and information to which he was entitled under our decision in” Blue. The essence of the order was that a preliminary hearing would just be a repetition of the coroner’s inquest. In Carter, the coroner took the testimony of five witnesses, including the two most damaging accusatory witnesses. Defense counsel cross-examined the witnesses at great length. Appellant did not name any witnesses whom he had wanted to call but had been unable to call at the inquest. In this case the situation is quite different. Only one witness testified at the inquest: a policeman who gave mostly hearsay testimony. *661He was not subjected to cross-examination. The Government’s eyewitness did not appear,10 nor did the other witnesses with direct knowledge of the crime. Defense counsel; sought to subpoena more witnesses, then, asserting his right to have a preliminary hearing, refused to participate. Clearly, this inquest was not a sufficient substitute for a preliminary hearing.
Defense counsel acted quite properly in refusing to participate. The inquest and the preliminary hearing are not equivalents. Defense counsel need not acquiesce in the Government’s decision to proceed by inquest rather than preliminary hearing. Defense counsel in Carter chose to participate in the inquest. Appellant’s counsel was within his rights under Rule 5 in insisting on a preliminary hearing.
The Government argues that the testimony at the inquest sufficiently “outlined the foundations of the charge against appellant,” including the identity of the “key government witness.” This argument, by analogy to Carter states that appellant could learn no more in a preliminary hearing than he did in the inquest. In the light of Washington v. Clemmer, supra, this argument cannot be maintained. Appellant therein, like this appellant, was an indigent. In appealing from a denial of habeas corpus, he argued inter alia that his preliminary hearing was insufficient because the Commissioner had refused to subpoena the complaining witness. Rule 17(b). In the per curiam opinion reversing, filed on May 11, 1964, the court stated:
“As we said in Greenwell v. United States, 115 U.S.App.D.C. 44, 46, 317 F.2d 108, 110 (1963), ‘if the accused avers facts which, if true, would be relevant to any issue in the case, the requests for subpoenas must be granted, unless the averments are inherently incredible on their face, or unless the Government shows, either by introducing evidence or from matters already of record, that the averments are untrue or that the request is otherwise frivolous.’
“Likely to be called on this basis, in addition to alibi witnesses, are the complainant and other material witnesses named in the complaint who for some reason have not been called by the Government.” Supra at 219, 339 F.2d at 718.
In its opinion of June 12, 1964, the court placed much reliance on the fact that “[t]he accused here averred that the prosecutrix, if called, would fail to make a positive identification * * Supra at 226, 339 F.2d at 725. The court did not reach the question of whether such averment is necessary under Rule 17(b). This case is extremely close to the Washington case. Appellant here has made the same allegation in precisely the same words: that the eyewitness “cannot make positive identification of me in connection with the alleged offense.” Appellant’s Affidavit of October 21, 1964; Washington’s Affidavit of May 11, 1964. We held that it was reversible error for the Commissioner to refuse to issue a subpoena under Rule 17(b) in Washington-, it is equally clear that appellant would be entitled to subpoena the eyewitness at a preliminary hearing.11 Thus, the preliminary hearing would give him a greater opportunity to confront his accusers and learn the strengths and weaknesses of the Government’s case than he had in the inquest.12
*662The writ of habeas corpus should issue because appellant is being held in custody without a preliminary hearing, in violation of Rule 5. There is no need for appellant to establish more than this in the hearing on the writ: He need not use this occasion as an opportunity to rebut the Government’s showing of probable cause. As indicated above, I think that the proper remedy is to instruct the District Court to issue the writ, to be made absolute unless a preliminary hearing is held prior to the date of return. See Washington v. Clemmer, supra.
. This was six clays before our decision in Blue, infra, came down.
. Fed.R.Crim.P. 5 provides in pertinent part:
“(a) Appearance before the Commissioner.
“An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith. * S{C }}{
“(c) Preliminary Examination.
“The defendant shall not be called upon to plead. If the defendant waives preliminary examination, the commissioner shall forthwith hold him to answer in the district court. If the defendant does not waive examination, the commissioner shall hear the evidence within a reasonable time. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. If from the evidence it appears to the commissioner that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the commissioner shall forthwith hold him to answer in the district court; otherwise the commissioner shall discharge him. The commissioner shall admit the defendant to bail as provided in these rules. After concluding the proceeding the commissioner shall transmit forthwith to the clerk of the district court all papers in the proceeding and any bail taken by him.”
. The court stated that a defendant must not be denied “the opportunity to consider utilizing” the pretrial hearing. It could hardly be argued in the light of this case that a defendant who decided to avail himself of the benefits of this proceeding could be denied access to a hearing.
. The Supreme Court’s holding in Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965), cited by the majority, is not inconsistent with this approach. In Jaben the Court held that the return of an indictment did not moot the question of whether probable cause existed prior to the return of the indictment for purposes of Section 6531 of the Internal Revenue Code. Jaben dealt with the interaction of the Rules of Criminal Procedure and the statute of limitations provision in the Internal Revenue Code. A similar construction of Rule 5 may be adopted where other policies or statutes so require. Cf. Blue v. United States, supra.
. The jury’s verdict states that they hold the respondent for the action of the grand jury. If the respondent is actually held under their authority, it is unclear where this authority comes from. The only thing resembling such authority is the coroner’s power under Section 11-1904 to require a witness to give a recognizance to appear and testify in the District Court when the jury finds that murder or manslaughter has been committed. But this falls short of the power to commit.
. The kinds of problems presented by having a presiding officer who is not trained in the law are illustrated in this case. In instructing the jury, the coroner stated that the jury could bring in (a) a verdict of accidental death, (b) a verdict of justifiable homicide if they found that appellant had killed the victim in self-defense, or (c) a finding that appellant caused the victim’s death in a wilful manner. The instruction did not leave open for the jury the possibility that the victim was wilfully killed by someone other than appellant. A finding of responsibility under such an instruction can hardly be regarded as an adequate substitute for a finding of probable cause at a pretrial hearing.
. On page 6 of the transcript of the inquest, the coroner told defense counsel that he could subpoena witnesses. It is not clear under what authority defendant would have this power. Perhaps the coroner meant only that counsel could ask him to subpoena witnesses for the defense. On the same page, moreover, the coroner stated that he would listen to the one witness from the police department and then ask the jury “if they feel further witnesses are necessary. On their reactions to this it will be my decision whether we continue this, subpoena more witnesses or terminate the testimony then.” Defense counsel did request that other witnesses be subpoenaed, and his request was in effect denied.
. It seems that the coroner provides the respondent with counsel and gives him the right to cross-examine, as a matter of practice. But this is quite different from a statutory right.
. The decisions of this court do not compel a contrary result. In Neely v. United States, 79 U.S.App.D.C. 177, 144 F.2d 519, cert. denied, 323 U.S. 754, 65 S.Ct. 83. 89 L.Ed. 604 (1944), we said, that the coroner “sits in a quasi-judicial capacity.” Supra at 178, 144 F.2d at 520. The issue in that case was whether appellant’s exculpatory statement made at an inquest could be used for impeachment. The focus of the court’s inquiry was whether the inquest was characterized by “the evils of prolonged questioning” which McNabl) was designed to prevent. In this context the opinion remarked that the proceeding was “quasi-judicial” and the appellant had ample safeguards; hence, McNahl) did not compel exclusion of the evidence. The court did not consider whether an inquest could be a substitute for a preliminary hearing.
In Allen v. United States, 91 U.S.App.D.C. 197, 201, 202 F.2d 329, 333, cert. denied, 344 U.S. 869, 73 S.Ct. 112, 97 L.Ed. 674 (1952), the court stated in dictum that a coroner’s inquest “was equivalent to a hearing before a committing magistrate.” (Footnote omitted.) The issue in the case was whether a confession made prior to the inquest was admissible. The court cited only the Neely case and the statute to support its assertion. Neither is authority for the position taken. For the reasons stated above, I do not consider an inquest equivalent to a preliminary hearing.
. The policeman testified that the eyewitness saw appellant standing over the body from a distance of nearly % of a mile.
. Appellant also sought to subpoena several other witnesses; we need not decide whether he is entitled under Rule 17 (b) to compel their attendance. It is sufficient to hold that appellant is entitled to an opportunity to confront the eyewitness.
He has not yet been given such an opportunity.
The Commissioner’s denial of appellant’s motion for a subpoena, entered on October 21, 1964, seems to be irreconcilable with our decision in Washington.
. The appellant did not waive his right to a preliminary hearing by refusing the Government’s offer of an immediate hearing on October 19. The hearing had been continued on October 12 until October 23. The Government cannot speed up the process and compel the defendant to go *662to a hearing unprepared. Nor was the bill of particulars provided to defendant by the Government a substitute for a preliminary hearing.