This is a companion case to that of Fen-wick “Shank” Smith v. United States of America, 128 F.2d 990, this day decided. *324For the reasons given in that opinion, the judgment here appealed from is reversed, and the cause is remanded to the District Court for further proceedings not inconsistent therewith.

(concurring, in part and dissenting in part).

I concur in the result, but because the question is not before us and an opinion on it is not called for, I dissent from the expressed view that Congress could have provided'for trial without a jury.