Treschenko

The appellant was convicted of murder in the first degree and the death penalty was imposed. Upon this appeal he contends:—

1. That the court erred in refusing to grant a continuance requested upon the ground-that the evidence and testimony taken in the police court -upon the preliminary examination had not been written up and filed in the office of the clerk of the superior court as required by law. The court, having denied this motion directed the defendant to plead to the information. Defendant thereupon moved that the information be set aside upon the ground that he had not been legally committed for the reason that he had not been represented by counsel upon his preliminary examination in the police court, and that, through his ignorance of and unfamiliarity with the English language, he did not understand his right to be represented by counsel. Where non-performance of an official duty is shown, such as the failure of the reporter to file a transcript of the testimony taken at the preliminary examination within the time prescribed by law, the court might well have granted a continuance until this was done, and likewise have taken measures to see that it was promptly done.…