dissenting:
A jury convicted Edward Donald Eckert of various crimes arising from an occurrence on June 7, 1976, at the residence of Michael and Paula Gaughan, in Las Vegas, where Gaughan was an owner of the Royal Inn Casino. Patsy Gaughan testified that at 8:30 p.m. on June 7, she and her baby, Patsy Rampolla and her son, and Victor Trapani were in the residence. Trapani left the house and, in a few minutes, returned with an armed intruder who wore sun glasses, a false beard and moustache, and who sometimes spoke with a lisp. After learning that Michael Gaughan was not present to divulge the combination for the Royal Inn’s inner safe, the intruder demanded that Mrs. *103Gaughan summon Tony Hegler, the casino’s general manager. When Mr. Hegler arrived, the intruder put a gun to Hegler’s head, and asked for the safe combination, which Hegler did not know. Throwing the attache case to Hegler, the intruder told him and Trapani to go to the casino, and to obtain all money in the safe. Hegler and Trapani did so. The intruder left the residence, carrying the attache case containing the money. Appellant was later identified as the intruder.
At trial, appellant testified he had been with Janice Zureck at Lake Mead on June 7, 1976. He assertedly took Zureck home about 8:30 p.m. or 8:45 p.m. Although he testified he was not the intruder, he admitted that, after the crimes, he had accepted $2,500 from Anthony Barker to dispose of two guns and a false beard. The appellant’s theory was that Barker and Trapani committed the crimes, and that another owner of the Royal Inn was involved also. (Trapani was Eckert’s co-defendant, and the State originally charged Barker with the same crimes.)
The trial judge excluded Janice Zureck’s testimony, for failure to give a timely notice of alibi testimony. Appellant contends exclusion of the alibi testimony is reversible error. We agree.
NRS 174.087(4),1 as amended in 1971, is permissive. It allows introduction of alibi testimony despite noncompliance with the provisions for notice. Whether good cause has been shown for allowing the testimony can be determined only by a review of the particular facts and circumstances of each case. Founts v. State, 87 Nev. 165, 483 P.2d 654 (1971).
In Founts, id., at 169, 483 P.2d at 656, we set forth factors considered by other states in determining whether good cause existed for exercising a trial court’s discretion to allow the alibi *104testimony. The factors applicable to this case are whether the testimony was sought to be introduced at such a late time that even an adjournment for investigation would not cure the prejudice to the State; whether an excuse was shown for omitting to give the State notice; and, whether the alibi had such substance as to have probative value.
Appellant’s attorney advised the special prosecutor there was an alibi witness on Thursday, October 6, 1977, the fourth day of trial. The trial judge directed appellant’s attorney to provide to the special prosecutor all of the information appellant had. The issue was set for argument on October 7, 1977, prior to continuation "of appellant’s case. Appellant had called only Michael Gaughan to testify on October 6, 1977.
At the hearing, appellant’s attorney informed the court that appellant advised him at the outset of his representation that a “Jan” could testify she had been with appellant at the time the crime was alleged to have occurred. Appellant doubted an investigator could locate Jan, and stated he would try to find her himself. He was also concerned that, if Jan learned investigators were searching for her, she would not come forward. Appellant’s attorney informed him that a notice of alibi would be required. Two weeks before trial, appellant gave his attorney the names “Janice Zureck” or “Janice Jureck.” During the week prior to trial, appellant informed counsel that someone at the prison could possibly locate the witness. The attorney’s staff thereafter learned the correct name was “Janice Zureck.” On either the Friday preceding trial, or on the day trial was to commence, the witness Janice Zureck contacted appellant’s attorney. After interviewing her on Tuesday or Wednesday, the attorney then notified the state, as described above. An offer of proof was made that Zureck would testify she had been with appellant during the day, and at the time of the crime, on June 7, 1976.
The need for Zureck’s testimony is evident. The intruder wore a false beard, false moustache, and sunglasses, and apparently attempted to disguise his voice by speaking with a lisp. Credible testimony from Janice Zureck that she was with appellant at 8:30 p.m., the time the witnesses testified the intruder entered the Gaughan house, could have exonerated the appellant.
The State did not show prejudice to its case beyond that engendered by any continuance, but requested no continuance.2 Appellant, who had been in custody since his indictment, agreed to continue the trial for any time necessary.
*105In deciding that the appellant presented good cause to allow the introduction of alibi testimony, we note the language used by the Supreme Court in Williams v. Florida, 399 U.S. 78 (1970), in which the high court determined that a notice of alibi statute similar to ours was constitutional. The Court said, at 83, n.14:
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.
We think the trial court erroneously excluded relevant, probative evidence as a means of enforcing a discovery rule, despite a showing of good cause for non-compliance with the rule. Cf. Barker v. State, 95 Nev. 309, 315, 594 P.2d 719, 722-723 (1979).
Other contentions of error need not be addressed inasmuch as it does not appear they would necessarily reoccur.
We would reverse and remand for new trial.
NRS 174.087 states in material part:
“1. A defendant in a criminal case who intends to offer evidence of an alibi in his defense shall, not less than 10 days before trial or at such other time as the court may direct, file and serve upon the district attorney a written notice of his intention to claim such alibi, which notice shall contain specific information as to the place at which the defendant claims to have been at the time of the alleged offense and, as particularly as are known to defendant or his attorney, the names and addresses of the witnesses by whom he proposes to establish such alibi.
“4. If a defendant fails to file and serve a copy of such notice as.herein required, the court may exclude evidence offered by such defendant for the purpose of proving an alibi, except the testimony of the defendant himself. If such notice is given by a defendant, the court may exclude the testimony of any witness offered by the defendant for the purpose of proving an alibi if the name and address of such witness, as particularly as is known to the defendant or his attorney, is not stated in such notice.” (Emphasis added.)
The special prosecutor represented to this court at oral argument that he interviewed Janice Zureck and determined further investigation would be needed in order to cross-examine her.