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STATE v. KELSAW

502 P.2d 278 (1972)

STATE of Oregon, Respondent, v. Virgil Allen KELSAW, Jr., Appellant. State of Oregon, Respondent, v. Virgil Allen Kelsaw, Jr., Appellant.

Court of Appeals of Oregon.

Decided October 27, 1972.

Rehearing Denied November 8, 1972.

Review Denied November 21, 1972.

Attorney(s) appearing for the Case

Peter A. Schwabe, Jr., Portland, argued the cause for appellant. With him on the briefs were Marshall & Schwabe, Portland.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the briefs were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.

SCHWAB, Chief Judge.

The defendant was twice convicted, on separate indictments, of the sale of heroin. His appeal from each conviction has been consolidated for argument before this court. The issues on appeal relate to Oregon's notice of alibi statute, ORS 135.875, which reads:

"(1) If the defendant in a criminal action proposes to rely in any way on alibi evidence, he shall, not less than five days before the trial of the cause, file and serve upon the...

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