¶1concurring in part and dissenting in part:
¶2*1038I respectfully dissent from that portion of the majority opinion which finds that K.S.A. 22-3218(1) was not implicated in this case. K.S.A. 22-3218(1) reads:
“In the trial of any criminal action where the complaint, indictment or information charges specifically tire time and place of the crime alleged to have been committed, and tire nature of the crime is such as necessitated the personal presence of the one who committed the crime, and the defendant proposes to offer evidence to the effect that he was at some other place at the time of the crime charged, he shall give notice in writing of that fact to tire prosecuting attorney except that no such notice shall be required to allow testimony as to alibi, by the defendant himself, in his own defense. The notice shall state where defendant contends he was at tire time of the crime, and shall have endorsed thereon the names of witnesses he proposes to use in support of such contention.”
¶3The majority contends that the second sentence negates the requirement of the first sentence because Deffebaugh was not attempting to prove that he was elsewhere through Shobe’s testimony, just that he wasn’t at the scene of the crime.
¶4There are difficulties with this interpretation. Sentence one clearly defines alibi evidence as “evidence to the effect that he was at some other place at the time of the crime charged.” The evidence sought to be introduced by Deffebaugh through someone other than himself was that he was “at some other place” because he was not at the scene of the crime.
¶5The second sentence does not trump the first as it simply lists what information the notice of alibi must contain. It mentions no exception for eyewitnesses to the crime. This is significant because the statute does except from the requirement any alibi testimony to be presented by the defendant himself. The legislature knew how to make exceptions.
¶6The majority seems to infer that the requirement to list where a defendant contends he was at the time of the crime and “the names of witnesses he proposes to use in support of such contention” can be defeated by simply declining to state where he was and refusing to present any witnesses, other than himself, as to where he was. This position appears to be based on the assertion that presenting evidence you were not there does not contend you were elsewhere. This is incorrect law and probably worse metaphysics.
¶7*1039Under our alibi statute, whose constitutionality is not challenged, Deffebaugh may present witnesses other than himself to support his contention of not being at the scene if he follows the procedure set out in the statute. He did not and the trial court was correct to rule as it did.
¶8I dissent from that portion of the opinion which holds the trial court abused its discretion by so ruling.