I am in agreement with the majority that evidence of flight, standing alone, is some evidence of guilt, but ordinarily is of slight probative value and not a substitute for direct proof of the commission of the crime charged. It is simply some evidence of guilt. (People v. Fiorentino, 197 N. Y. 560, 567.)
The majority, however, are determining that the admission of such evidence in this case is reversible error because at the time of the attempted escape, there was on file a detention warrant from the State of Ohio which they contend may have been the reason for the flight rather than the crime for which he was tried. They rely upon People v. McKeon (64 Hun 504 [1892]). I disagree because I do not consider that case binding upon this court nor do I consider it an accurate expression of the present-day law. Such a rule compensates a defendant against whom there is some form of detainer on file.
The workable rule is to admit the evidence of flight as part of the People’s case. The defendant thereafter has the opportunity of explaining why he took flight; for instance, in the present case, that it was not because of the crime for which he was being tried but rather because of the Ohio warrant. He could testify himself or offer other competent evidence. It would have been relatively simple for the defendant to have subpoenaed the Sheriff or other officer to testify as to the detainer. This is not changing the rule of evidence or casting a presumption of guilt on the defendant since we all agree that escape evidence alone is not sufficient to sustain a conviction.
While not analogous to the present situation, People v. Stilwell (244 N. Y. 196) is helpful in understanding the rule. The court seemed to imply that when the evidence of flight is introduced for the purpose of showing guilt of the crime charged, the defendant is then called upon to explain the reason for the flight, if he so chooses. The question then is the weight the jury gives to this testimony. (See, also, People v. Leyra, 1 N Y 2d 199, 208, 209, 210.)
*413To exclude the evidence in the first instance, there should be a complete absence of any connection with the crime charged since such evidence alone raises no presumption of guilt. But here, there was other positive proof of the defendant’s participation in the commission of the crime.
In Ryan v. People (79 N. Y. 593) the court said at page 601: ‘ ‘ The evidence that the defendant made an effort to keep out of the way of the sheriff was very slight, if any evidence of guilt. There are so many reasons for such conduct, consistent with innocence, that it scarcely comes up to the standard of evidence tending to establish guilt, but this and similar evidence has been allowed upon the theory that the jury will give it such weight as it deserves, depending upon the surrounding circumstances. It was not error to admit it.”
The fact that the defendant elected not to offer an explanation should not control and be the grounds for reversal.
It should also be noted that there was no objection to the court’s charge nor any exception by the defendant to the request to charge as to “ flight ”.
The defendant further contends that the conviction should be reversed on the grounds that a juror was allowed to leave the jury room to answer a personal telephone call. Such a practice is abhorred and certainly not in the best tradition of the criminal law. However, there is no claim made of improper motives or prejudice to the defendant and the error does not justify the granting of a new trial.
Accordingly, I vote to affirm the judgment of conviction.
Coox, J. P., Gtbsox and Taylor, JJ., concur with Reyxolds, J.; Herlihy, J., dissents, in an opinion and votes to affirm.
Judgment reversed on the law and the facts and a new trial ordered.