¶1 delivered the opinion of the court.
¶2 Evidence of the liability vel non of the appellant was for the determination of a jury, and no error, if error at all, was committed by the court below in the giving and refusing of instructions, except in instructing the jury, on the request, of the appellee, “that when nine of you have returned a verdict, that verdict shall be the verdict of the jury.” The instruction should not have been given in the mandatory form, but should have *890 charged the jury that, if nine or more of them agree on a verdict, they may return the same into open court as the verdict of the jury, or words to 'that effect. Constitution, section 31, as amended, and section 2067, Code 1930.
¶3 It does not appear from the record that this instruction was acted on by the jury, their verdict being, “We, the jury, find for the plaintiff, two thousand dollars.” Had the appellant desired, he could have easily have caused the record to disclose whether this was the verdict of less than twelve jurors by having the jury polled when it returned its verdict.
¶4 In the absence of such a disclosure, it does not appear that the appellee was harmed by the giving of the instruction.
¶5 Affirmed.