(dissenting.) — I do not concur-in the conclusion reached in the majority opinion as to the alleged error in' permitting the prosecuting attorney to make a reply statement to the jury, preliminary to the trial.
It appears from the record that the prosecuting attorney stated to the court that he understood that he would not be permitted to make a reply statement. Upon associate counsel insisting that the State should be permitted to reply to extraneous matter, counsel for appellant stated his grounds of objection thereto. Subsequently, upon a renewal of the request by the prosecuting attorney, the court permitted the reply statement to be made, to which timely objections were interposed.
That portion of the statute (Sec. 5231, R. S. 1909) defining the procedure in regard to the statement of counsel in criminal cases preliminary to the introduction of testimony, is as follows: “The jury .being impaneled and sworn, the trial may proceed in the following order: first, the prosecuting attorney must state the case and offer the evidence in support of the prosecution; second, the defendant or his counsel may then state his defense and offer evidence in support thereof.”. ...
*198The form qf the statute, so far as concerns the course to be pursued by the prosecuting attorney, is mandatory. Construed under the rule of expressio unius, therefore, his right was limited to an opening statement. That the law contemplates the enforcement of this limitation as a part of the regular order of procedure, there is but little question, and a failure to observe the requirement is not to be commended. However, appellant’s contention, to afford ground for reversal of the judgment, must take deeper root than is afforded by the form of the statute. It must not only, in reason, and in furtherance of a wholesome administration of the criminal law, appear, on account of the court’s ruling, that the appellant suffered some substantial injury. The prosecuting attorney’s reply consisted of a statement of the testimony he proposed to offer in rebuttal to the evidence which it had been stated would be introduced by the appellant, a portion of which was in regard to the relations, which had been sustained, between the latter’s wife and the deceased. While much of the testimony proposed to be introduced by counsel on each side, in' regard to these relations, was wholly irrelevant, and was subsequently excluded when offered, the main portion of the evidence proposed to be offered in the reply statement consisted of material facts which were actually introduced in evidence, and were proper in rebuttal. To the introduction of same, counsel for appellant does not complain. He should not be heard, therefore, to complain of the statement of its proposed introduction. The plea, therefore, as to the injury arising from the reply statement is specious rather than real. It will be found upon an examination of the facts in the case of State v. Kennedy, 177 Mo. l. c. 117, that the ruling there made as to the impropriety of the reply statement made by the prosecuting attorney was as to the prejudicial character of same, and not to the fact that it was unauthorized by the statute. No fault is to be found with that • ruling, the reason of which is in accord with the *199conclusion we have reached * herein and hence does not support appellant’s contention.
We are, therefore, of the opinion that no prejudicial error was committed in permitting the prosecuting attorney to make a reply statement, and that the judgment of the trial court should be affirmed. ,