¶1 This case comes before us on appeal from the circuit court’s decision reversing and remanding respondent’s conviction by jury in magistrate’s court.
¶2 On appeal to the circuit court, the magistrate did not file a record of the trial proceedings as required by S. C. Code Ann. § 18-3-40 (1976) but furnished only taped recordings of the testimony. The circuit court without benefit of a record held respondent had been denied voir dire.
¶3 It was clearly error for the circuit court to hear the appeal in the absence of a record filed by the magistrate pursuant to S. C. Code Ann. § 18-3-40 (1976). The burden was on respondent as the party appealing below to obtain the magistrate’s compliance by mandamus if necessary. State v. Eaves, 260 S. C. 523,197 S. E. (2d) 282 (1973); State v. Adams, 244 S. C. 323, 137 S. E. (2d) 100 (1964).
¶4 The order of the circuit court is reversed. Respondent has ten days from issuance of this opinion to require the magistrate to file his record with the circuit court in compliance with Section 18-3-40.