For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
Defendant was convicted of larceny in violation of N.J.S. 2A:119-2. He appeals from the conviction and from orders denying two post-conviction applications. We certified the appeals before argument in the Appellate Division.
The offense charged involves a familiar pattern of larceny by trick, committed in the City of Newark. The State contended that defendant posed as a stranger with considerable cash in pocket and, assisted by an accomplice who pretended to have just happened along, led the victim to withdraw the balance of his savings account, thereby to persuade defendant that banks are places of safe deposit. The victim's cash, totaling $405, was purportedly wrapped with defendant's cash in a handkerchief and left with the victim for interim holding. There had been a switch; the handkerchief held newspaper.
Defendant denied all, saying he was never in the City of Newark and claiming that while he did not know precisely where he was at the time of the offense, he was somewhere in Philadelphia, where he lived.
There were but two witnesses at the trial, the victim and the defendant. Defendant attacks the verdict as against
the weight of the evidence. He stresses some strangeness in the testimony of the victim, but this is not surprising of one who could be swindled so easily. We are not persuaded that the jury's verdict is infected with mistake, passion, prejudice or partiality. R.R. 1:5-1(a); State v. Forcella, 35 N.J. 168, 175 (1961), cert. denied 369 U.S. 866, 82 S. Ct. 1035, 8 L. Ed. 2 d 86 (1962).
Defendant complains of the failure of the trial court to charge specially on the subject of alibi. There was neither a request to charge nor an objection to the failure to charge on the subject, but defendant, through counsel assigned to represent him on this appeal, asserts the trial court's omission was sufficiently grievous to be available on appeal as "plain error." R.R. 1:5-1(a); State v. Williams, 39 N.J. 471, 485 (1963), cert. denied 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2 d 1075 (1963). He relies upon State v. Searles, 82 N.J. Super. 210 (App. Div. 1964), where it was held to be plain error for the trial court not to have charged on the subject of alibi on its own motion.
Alibi is not a "separate" defense. It is part and parcel of a direct denial of the State's charge whenever the defendant's physical presence at a given time and place is a critical part of the prosecution's case. R.R. 3:5-9(a) provides:
"If a defendant is to rely in any way on an alibi, he shall, on written demand of the prosecuting attorney, furnish a written bill of particulars, signed by him, and stating the specific place or places at which the defendant claims to have been at the time of the alleged offense, and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi. Such particulars shall be furnished the prosecuting attorney within 10 days from the service of such demand."
The rule so provides, not on the thesis that alibi is a separate defense as distinguished from a denial of a part of the case the State must prove, but rather to avoid surprise at trial by
the sudden introduction of a factual claim which cannot be investigated unless the trial is recessed to that end.
The subject of alibi has commanded an inordinate amount of judicial consideration. Perhaps the reason is that at one time some courts thought of alibi as a separate defense and charged the jury that the defendant had the burden of proof with respect to it. See Annotations, 118 A.L.R. 1303, 1304 (1939); 29 A.L.R. 1127, 1139 (1924); 124 A.L.R. 471, 474 (1940). That error crept into the charge in Sherlock v. State, 60 N.J.L. 31 (Sup. Ct. 1897); State v. MacQueen, 69 N.J.L. 522, 531 (Sup. Ct. 1903); State v. Parks, 96 N.J.L. 360 (Sup. Ct. 1921), and was thought to be implicit in the charge given in State v. DeGeralmo, 83 N.J.L. 135, 138 (Sup. Ct. 1912). But it is now perfectly clear in our State that alibi is merely a direct denial of the State's charge; and that being so, it is not apparent why such testimony should be dealt with differently from any other direct denial of the State's allegations.
Indeed the very discussion of alibi as something apart from a direct denial of the truth of the State's case tends to obscure its role and to suggest a defendant has some special responsibility with respect to it. See, for example, the cumbersome explanation to the jury which passed muster in State v. Kee, 7 N.J. Misc. 676, 147 A. 49 (Sup. Ct. 1929), and again on further review in 106 N.J.L. 336 (E. & A. 1930). Cf. State v. Thomas, 11 N.J. Misc. 157, 158, 165 A. 101 (Sup. Ct. 1933), affirmed o.b. 111 N.J.L. 239 (E. & A. 1933).
Moreover, so long as alibi is thought to command special treatment, there will be unrewarding questions as to what constitutes an alibi and the sufficiency of evidence to raise the issue. Cf. State v. Mucci, 25 N.J. 423, 430-32 (1957); State v. Smith, 43 N.J. 67, 80-81 (1964), cert. denied 379 U.S. 1005, 85 S. Ct. 731, 13 L. Ed. 2 d 706 (1965); State v. Driver, 38 N.J. 255, 290 (1962). For example, how precise must a defendant's claim be? R.R. 3:5-9(a), quoted above, ...