¶1(concurring specially).
¶2While I agree with the result reached by the majority opinion, I do not agree with the language of the opinion which appears to announce that it is “reversible error” for the clerk of courts to fail to inquire of the jury whether the announced opinion is theirs, pursuant to SDCL 23-45-26, but that requirement is waived by reason of appellant’s failure to poll the jury, a right granted by SDCL 23-45-25, which is a right to be exercised before the clerk records the verdict pursuant to SDCL 23-45-26.
¶3The proceedings in this case were in compliance with SDCL 23-45-8, 23-45-25 and 23-45-26 with the exception that the clerk neglected to read back the verdict to the jury' and inquire of them whether it was their verdict. SDCL 23-45-26. Absent a showing that such was not the jury’s verdict, a fact which could only be made to appear had appellant' demanded a poll of fíie jury when the right was timely afforded, “we must accept the record as reflecting the true finding of the jury,” King v. Jameson, 1944, 69 S.D. 565, 13 N.W.2d 46, and appellant’s collateral attack must fail. Further, as indicated in another point by the majority opinion, the failure of the clerk to perform this ritual is not such a substantial departure from form or mode of proceeding as to' have prejudiced the appellant’s substantial right. SDCL 23-1-2.