This court is unanimously of opinion that the evidence upon which the judgment of conviction rests is abundant and convincing.
The prosecution waived the right to open the case, and it is appellant’s contention that the district attorney is compelled to deliver an opening and that the failure to do so, in the absence of waiver by defendant, constitutes reversible error. Inasmuch as *68there is no legal rule for the measurement of an opening (People v. Van Zile, 73 Hun, 534), which may consist of nothing more than a reading of the indictment (People v. Reilly, 49 App. Div. 218; affd., without opinion, 164 N. Y. 600), such a requirement would be an absurdity. In no possible sense can it be said that any right of the appellant was prejudiced by such omission. Section 388 of the Code of Criminal Procedure, which appellant invokes, concerns itself with the order in which the trial shall proceed. Controlled by that subject-matter, the fair meaning of the provision in the first subdivision of that section, namely, that the district attorney “ must open the case,” in my opinion, is that it is imperative that his opening precede that of defendant or his counsel, if he makes one.
Even if the provision is to be construed as making it mandatory upon the district attorney to say something and that the omission so to do is error, such error, particularly in the light of the proof in this case, is harmless. (Code Crim. Proc. § 542.)
The judgment of conviction should be affirmed, and the appeal from the sentence imposed dismissed.
Lazansky, P. J., Carswell and Johnston, JJ., concur; Taylor, J., concurs in the dismissal of the appeal from the sentence imposed, but dissents from the affirmance of the judgment and writes for reversal and a new trial.