dissenting:
Having concluded that appellant Wilhelm should be granted a new trial, I respectfully dissent in No. 277.
As the majority itself recognizes, if remarks made by the prosecuting attorney in an opening statement include facts that are plainly inadmissible, reversal will follow if the accused establishes “ . . . bad faith in their making, or substantial prejudice resulting therefrom. . . .” Clarke v. State, 238 Md. 11, 20, 207 A. 2d 456 (1965) (emphasis added). Yet, neither the majority of this Court nor of the Court of Special Appeals fully applied that test to the statements *447made here. Both have proceeded on the premise that, in any event, prejudice must be shown. I do not agree.
In resting their decision upon the absence of such prejudice, both courts have misapplied our earlier decision in Wood v. State, 192 Md. 643, 65 A. 2d 316 (1949). In that case, which involved comments made during argument to the jury rather than opening statement, we said:
“It is quite true that appeals to class prejudice or to passion are improper and may so poison the minds of jurors that an accused may be deprived of a fair trial. However, unless it appears that the jury were actually misled or were likely to have been misled or influenced to the prejudice of the accused by the remarks of the State’s Attorney, this Court will not be justified in reversing a judgment of conviction solely because of intemperate remarks made in the ardor of advocacy. . . .” 192 Md. at 652 (emphasis added).
We are not confronted here with mere “intemperate remarks made in the ardor of advocacy.” It is difficult to imagine how that atmosphere could even exist at the very outset of a trial. The prosecutor was delivering the first paragraph of his opening statement, presumably only moments after the trial had commenced. Opening statements by the prosecuting attorney, or by plaintiff’s counsel in a civil case, may well be the only “script” to be utilized in the trial of any case.
The remarks made here cannot be sloughed off as a mere “slip of the tongue” or as an “improvisation.” Nor am I able to detect the “exigencies” referred to by the majority. On the contrary, one can only infer that the message intended to be conveyed by the prosecutor’s words was “ . . . carefully constructed in toto before the event. . Donnelly v. DeChristoforo, 416 U. S. 637, 94 S. Ct. 1868, 1873, 40 L.Ed.2d 431 (1974). I agree with the majority below that the comments were improper per se, but I would also hold that they were made in bad faith and therefore compelled reversal, Clarke v. State, supra, 238 Md. at 20.
*448Furthermore, I think that there was error even if we apply “substantial prejudice” or “actual prejudice” as the test. This was a one-day trial, not a protracted proceeding. Thus, it does not stretch the imagination to assume that the words of the prosecutor were fresh in the minds of the jurors when they retired to deliberate. It is equally important to note that nothing was said to the jury following the objection by defense counsel. The jurors could logically have assumed from the court’s silence following the bench conference that the objection had been overruled, thereby suggesting its approbation of the remarks.
A number of the authorities cited by the majority, almost all of which dealt with jury argument rather than opening statements, appear to have turned on whether the trial judge issued a curative instruction following improper comment. No such instruction was given here, and under the circumstances of this case that failure alone established prejudice. As the majority has noted in part, we said in Contee v. State, 223 Md. 575, 165 A. 2d 889 (1960):
“... We point out, however, that the State’s Attorney has an obligation to refrain from making any remark within the hearing of the jury which is likely or apt to instigate prejudice against the accused. We further point out that, while the granting or refusal of a mistrial is a matter lying within the sound discretion of the trial court, the court, nevertheless, in addition to sustaining an objection to an improper remark or misconduct, is also entrusted with further responsibility to caution or reprimand the State’s Attorney as the exigencies of the situation may require and to forthwith instruct the jury to disregard the unwarranted remarks and conduct of the prosecuting attorney.” 223 Md. at 584 (emphasis added).
I find nothing in any of our other prior decisions that imposes an absolute requirement upon defense counsel to request a curative instruction. Given the impropriety of the *449comments, which was tacitly recognized by the trial judge, the objection and motion were sufficient to cast upon the court the responsibility for curative action. The failure to properly instruct the jury at any time before it retired and the refusal to grant a mistrial, taken together, constituted an abuse of discretion. I would reverse and remand for a new trial. Judge Eldridge authorizes me to state that he concurs in this opinion.