The court’s action in detaining the defendant’s witness Accurso was proper. He was not rebuked until after the jury had retired. This court has laid down the procedure in such a case: “ The witness may be detained in court until the jury has retired before the judicial rebuke is administered.” (People v. Criscuoli, 164 App. Div. 119, 123.) I see no error in first telling the witness to step into a side room, since announcing a direction to hold him in the court room might become more noticeable to the jury. The jury subsequently retired. The court directed that the others should not leave the court room. After the jury’s retirement he spoke freely and with unreserve, such as might occur in course of an argument over the admissibility of testimony had in the jury’s absence.
Any remarks thus made to the district attorney cannot be held to affect the verdict, unless this court is to go far beyond precedent in criminal appeals. Can we assume misbehavior by the jury and by the court officer? After such adjournment is it to be presumed that the jury not only violated the court’s directions which so far as outside influences are concerned complied fully with Code of Criminal Procedure, section 415, and then infer that Officer Wellwood, in charge of them, was guilty of breach of his sworn duty as their custodian, under Code of Criminal Procedure, sections 414 and 421? Only on such suppositions, barren of the slightest support, can we say that the court’s animadversions reached and influenced the jury. The testimony that the day following this assault defendant was recognized by the woman assaulted *309was received without objection. I think it was within our ruling in People v. Keller (186 App. Div. 534).
Where the record shows no good exception to any ruling or instructions during the whole trial, and where the People’s evidence was met by a weak alibi, I cannot reverse a conviction because of the court’s outspoken remarks about a witness, made after the jury’s retirement.from the court room.
Jenks, P, J., concurred.
Judgment of conviction of the County Court of Kings county reversed, and new trial ordered.