Brewer

Appellants were charged by indictment in the United States District Court for the District of Arizona, filed May 18, 1944, with the crime of breaking into a building used as a post office of the United States. On July 19, 1944, the appellants were arraigned, pleaded not guilty, and the trial was set for August 10, 1944.

On August 7, 1944, appellants filed a demurrer to the indictment upon the grounds that the indictment did not charge or state that the building broken into by appellants was used wholly as a post office of the United States. On August 7, 1944, the demurrer was heard and the court entered an order overruling the same. On August 9, 1944, the appellants filed a petition for writ of habeas corpus ad testificandum for the production of a material witness, Perry Tunnell, who was confined in the Guard House at the U. S. Gunnery School at Kingman, Arizona. The court ordered the production of the witness.

On the day of trial, the witness Perry Tunnell did not appear and the United States Marshal reported that he had not been paid the fees. The appellants then moved for a postponement of the trial, alleging that the witness was material, and asked for the summoning of the…