concurring in part and dissenting in part:
I concur in the majority’s opinion as regards to appellant Founts and agree that the judgment of the lower court should be affirmed. I respectfully dissent from the majority’s opinion as regards the appellant Luffman.
Luffman, without giving the written notice required by NRS 174.087, sought to have his roommate, Edward Harris, testify that they were together at their place of residence at the time of the alleged robbery. An offer of proof was made outside the presence of the jury. The trial judge precluded Harris from giving testimony to establish an alibi for Luffman.
*171It appears that the state had been orally notified a few days1 before the trial began that Luffman intended to offer the alibi testimony of Harris. Luffman contends that the trial court abused its discretion when it precluded the alibi testimony of Harris, and the majority of this court agrees with Luffman’s contention. As a companion contention Luffman maintains that the testimony of Harris was offered not as alibi evidence but as impeachment of the prosecution witness Noel, who placed Luffman with Founts before and after the time of the alleged robbery. Although Harris’ testimony might of had the dual effect of impeaching Noel we must nevertheless read “evidence to establish an alibi” to mean any testimony placing Luffman somewhere else at the time of the robbery. State ex rel. Simos v. Burke, 163 N.W.2d 177 (Wis. 1968). Cf. State v. Ovitt, 229 A.2d 237 (Vt. 1967).
NRS 174.087 is a mandatory statute. The language is plain, unambiguous, positive and forceful. It provides that notice of intent to offer evidence to establish an alibi must be given in writing to the district attorney 10 days before trial, and it further provides that “[I]n default of such notice, evidence of such alibi shall not be received unless the court, upon good cause shown otherwise orders.”
Statutes such as NRS 174.087(1) which require notice to the prosecution when an alibi defense is contemplated are in derogation of the common law and must be strictly construed. State v. Ovitt, supra. As was pointed out in the majority opinion, strict compliance is compelled with the purpose of preventing the “popping up” of alibi witnesses at the eleventh hour when the prosecution will be unable to investigate the veracity of the alibi testimony, unless the trial is recessed for that purpose. Annot. 30 A.L.R.2d 480 (1953).
Whether evidence of such alibi, without proper notice, can be received is entirely within the discretion of the trial court. NRS 174.087; State v. Selbach, 68 N.W.2d 37 (Wis. 1955); State v. Woodard, 246 A.2d 130 (NJ.App. 1968).
In Brown v. State, 81 Nev. 397, 404 P.2d 428 (1965), this court said: “Of course the discretion reposed in the trial judge is not unlimited, but an appellate court will respect the lower court’s view unless it is manifestly wrong.” See also State v. Lewis, 50 Nev. 212, 255 P. 1002 (1927).
No reason was proffered by Luffman why the witness Harris should have been permitted to testify despite the lack of notice. *172The trial court specifically found that there was no reason or excuse given by Luffman for his failure to give the required notice and the record supports this finding. The only basis appearing in the majority opinion, for finding an abuse of discretion by the trial court, is the fact that a few days before trial the attorney for Luffman orally advised the district attorney that Harris would be called to supply an alibi for Luffman, together with the fact that the state had prior information that Harris lived with Luffman. These facts are not sufficient to support a finding that the trial court was manifestly wrong.
In the case of State v. Selbach, supra, it was admitted that no written notice was given to the district attorney pursuant to a statute. However, the trial attorney stated that he had given the district attorney oral notice thereof shortly before the trial and in his opening statement at the trial he had made reference to the proposed alibi testimony. There the defendant claimed that this was sufficient notice under the statute and amounted to “good cause shown” as provided by the statute. The Wisconsin Supreme Court held that the language of the statute was plain and unambiguous. Any notice given thereunder must be in writing and whether good cause is shown for permitting the receipt of alibi testimony in the absence of a written notice is a matter within the discretion of the trial court.2
Here the indictment was found against Luffman and filed on January 22, 1970. In the indictment Luffman was accused of committing the crime of robbery on or about September 9, 1969. The proceedings of the grand jury were filed on January 27, 1970, and in that transcript the victim testified that the robbery took place just before 6:00 p.m. on September 9, 1969. In that same transcript a Wayne Richard Noel, who claimed to have been an acquaintance of Luffman for a period of several months, testified that he came to Luffman’s residence on September 9, 1969; that at about 4:00 p.m. of that day he loaned his automobile to Luffman and that they went to downtown Reno, Nevada, where he got out of the automobile and Luffman and Founts drove off. Noel further testified that he returned to Luffman’s residence that evening about 6:30 p.m. and found Luffman, Eddie Harris, Founts and two other people. *173Luffman and Founts were discussing an armed robbery that they had just committed.
Here we do not have any vagueness or question about the time of the commission of the alleged crime or a situation where the identity of an alibi witness is discovered for the first time because of a last minute investigation, or by reason of testimony at trial, but instead we have proposed alibi testimony of a roommate about a specific place and period of time all known to Luffman, approximately two months before his trial commenced on March 23, 1970.
If there was any real question about the constitutionality, notice-of-alibi statutes such as NRS 174.087, that question was put to rest in the case of Williams v. Florida, 399 U.S. 78 (1970)3 when the United States Supreme Court said: “We conclude, however, as has apparently every court which has considered the issue that the privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and disclose his alibi witnesses.”
Almost without exception, in the jurisdictions where the trial courts have exercised their discretion and refused to accept alibi testimony because of non-compliance with the notice-of-alibi statute, the appellate courts have found no abuse. State v. Selbach, supra; Cox v. State, 219 So.2d 762 (Fla.App. 1969); State v. Dodd, 418 P.2d 571 (Ariz. 1966); People v. Williams, 160 N.W.2d 599 (Mich.App. 1968); State v. Woodard, supra; Gray v. State, 161 N.W.2d 892 (Wis. 1968). Cf. State v. Ovitt, supra. In State v. Sharp, 451 P.2d 137 (Kan. 1969), the applicable statute required that a notice of a plea of alibi be served upon the county attorney not less than seven days before trial. The notice was served not more than five days before trial. The lower court held that there had not been compliance with the statutory requirement and refused to grant permission for late service and the Supreme Court of Kansas held that the lower court did not abuse its discretion in such refusal. In State v. Leigh, 199 P.2d 504 (Kan. 1948), the trial court allowed a witness to give alibi testimony when the proper written notice had not been timely given. The appellate court found an abuse of discretion and reversed the trial court.
*174The opinion of the majority is destroying all effectiveness of NRS 174.087 and rendering it nugatory. If it is a manifest abuse of discretion for the trial judge to refuse to relieve Luff-man of the effect of NRS 174.087, then it is hard to image a situation where a trial judge could enforce the statute without committing error.
His other assignments of error being without merit, the judgment against Luffman should be affirmed.
The record indicates that the period of time was probably two (2) days.
Cf. State ex rel. Simos v. Burke, supra, (cited in the majority’s opinion) where the defendant was precluded from testifying that he was at a location other than the place of the accident because he had not given notice of an alibi under the applicable Wisconsin statute which in pertinent parts is very similar to NRS 174.087. See also State v. Rider, 399 P.2d 564 (Kan. 1965); State v. Taylor, 424 P.2d 612 (Kan. 1967).
In footnote 14 of Williams v. Florida, supra, the High Court noted: “We emphasize that this case does not involve the question of the validity of the threatened sanction, had petitioner chosen not to comply with the notice-of-alibi rule. Whether and to what extent a State can enforce discovery rules against a defendant who fails to comply, by excluding relevant, probative evidence is a question raising Sixth Amendment issues which we have no occasion to explore.”