
    396 P.2d 4
    STATE of Arizona, Appellee, v. Howard DANIELS, Appellant.
    No. 1356.
    Supreme Court of Arizona. In Division.
    Oct 21, 1964.
    
      Morse & Sands, Tucson, for appellant.
    Robert W. Pickrell, Atty. Gen., and Norman E. Green, County Atty., of Pima County, for appellee.
   SCRUGGS, Justice.

The parties will be referred to as plaintiff and defendant as they appeared in the lower court.

The defendant Howard Daniels was convicted of illegal possession of narcotics, heroin and marijuana, felonies. From the judgment, the defendant appealed.

For the purpose of the appeal, we need only consider Assignment of Error No. 2, reading substantially as follows: The court erred in denying defendant’s motion for a continuance, based upon failure to file, a reporter’s transcript of the preliminary hearing ten days prior to the time of trial in the Superior Court.

The defendant was arrested. At the preliminary hearing held before a magistrate, the defendant requested that the testimony be reduced to writing. No transcript was filed. Within ten days before the trial date, the defendant moved for a continuance until such time as the testimony was reduced to writing by the court reporter and the transcript filed of record. The court denied the motion.

It is our view that Rule 28 of Rules of Criminal Procedure, 17 A.R.S. gives the defendant the right to have the hearing before the magistrate reduced to writing and filed in the case. The matter as to whether or not a continuance will be granted to a defendant until such time as the transcript is filed is not one of discretion. A failure to do so in and of itself constitutes prejudice to the defendant in that it deprives him of a substantial right.

Judgment of the Superior Court is reversed.

STRUCKMEYER, J., and ALICE N. TRUMAN, Judge of Pima County Superior Court, concurring.  