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STATE v. KUBICEK

Nos. 435-1, 589-1.

5 Wn. App. 293 (1971)

486 P.2d 1098

THE STATE OF WASHINGTON, Respondent, v. THEODORE KUBICEK, Appellant. In the Matter of the Application for a Writ of Habeas Corpus of THEODORE KUBICEK, Petitioner, v. THOMAS G. PINNOCK, Respondent.

The Court of Appeals of Washington, Division One — Panel 2.

July 12, 1971.

Attorney(s) appearing for the Case

Richard A. Bailey, for appellant (appointed counsel for appeal).

Robert E. Schillberg, Prosecuting Attorney, and David G. Metcalf, Deputy, for respondent.

FARRIS, A.C.J.

Mr. Kubicek appeals from his conviction and sentence following a trial to a jury on the charge of burglary in the second degree. A man identified as Mr. Kubicek was seen inside a tavern on September 17, 1969, at approximately 3:30 a.m. after it had closed for business. Mr. Kubicek introduced evidence which, if believed, established that he was somewhere else on the date and time of the alleged offense.

The jury was instructed:

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