Conford, Kolovsky and Carton. The opinion of the court was delivered by Carton, J.A.D.
The brothers Nunn appeal their convictions for carnal abuse of a 14-year-old girl. The State's proofs tended to show that the offenses occurred in defendants' automobile sometime after 2 A.M. on November 7, 1968 in a field behind the Nunn home.
The indictment charged defendants with having committed the offenses on or about the 7th day of November 1968. Defendants invoked no discovery proceedings to require the State to specify the time the offenses occurred. On the other hand, the State duly served on each defendant a demand for particulars as to any alibi defense. Neither demand was ever answered.
The sole issue involved is the propriety of the exclusion of certain testimony supporting defendants' alibi.
In their defense, defendants admitted that the victim had been riding in the car with them earlier in the evening, but claimed that they had left her by about 11 P.M. and sat drinking beer in their car in back of their home until about 11:30 P.M. when they went to bed. Defendants now argue that it was reversible error for the trial court to exclude proffered testimony of the mother and sister of defendants to the effect that the brothers were observed going upstairs to bed about 11:30 P.M. on November 6.
At the outset of the trial the prosecutor learned for the first time that defendants intended to call their mother and sister to corroborate their claim that they had come into the house and gone to bed at 11:30 P.M. The State moved to exclude this proposed alibi testimony on the ground that
defendant had not complied with R.R. 3:5-9 (now R. 3:11-1) after being duly served with demand for particulars. The motion to exclude this testimony was granted. However, the mother and sister were permitted to testify that they had gone to bed at 11:30 P.M. and at that time knew the defendants to be present on the premises. At one point in her testimony the mother stated that she was still in the living room lying on the couch when her son Richard came into the house and went to bed. An objection to the question which elicited that information was sustained after she gave her reply. However, the jury was not told to disregard the answer.
Defendants contend that the proposed testimony of the two witnesses was not evidence of alibi but circumstantial evidence not encompassed by the rule. More precisely, defendants' argument is that they were not obliged to specify witnesses who had only circumstantial knowledge of defendants' whereabouts at the moment of the commission of the offense.
In State v. Baldwin , 47 N.J. 379, 389-390 (1966), cert. den. 385 U.S. 980, 87 S. Ct. 527, 17 L. Ed. 2d 442 (1966), the court alluded to but left unanswered the question of the applicability of the notice requirement to circumstantial evidence concerning alibi. Defendants' position finds support in State v. Rogers , 30 N.J. Super. 239 (Cty. Ct. 1954). In concluding that the rule is not applicable, that court noted that "[t]he State could not comply with defendant's demand without giving him a list of all its witnesses, and in relation to every aspect of its circumstantial case." Id. at 240.
Rogers was decided before the advent of extensive mutual discovery in criminal cases (see R.R. 3:5-11 then in force, replaced by R.R. 3:5-11 (now R. 3:13), adopted September 26, 1967) and without the benefit of judicial decisions expanding the limits of criminal discovery. (e.g., State v. Montague , 55 N.J. 387 (1970); Jones v. Superior Court , 58 Cal. 2d 56, 22 Cal. Rptr. 879, 372 P. 2d 919 (Sup. Ct. 1962). In view of the present state of the law as to discovery
in criminal cases, a contrary result from that expressed in ...