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defendant to prove this defense. This paraDURLEY V. STATE. (No. 3785.) graph of the charge is not subject to such (Court of Criminal Appeals of Texas. Nov. 3, criticism, and is in language frequently ap1915.)

proved by this court. And, having given 1. CRIMINAL LAW 1170_RULINGS ON Evi- this charge, it was not necessary to give DENCE-PREJUDICIAL ERROR.

Where, on a trial for cattle theft, a state's the special charge requested on that issue. witness confessed that he was a thief and that

The judgment is affirmed. he had aided accused in the theft, the exclusion of evidence on cross-examination that the witness had attempted to get a third person to aid in stealing cattle was not prejudicial, especially where the witness had already testified on the

FONDREN v. STATE. (No. 3766.) direct that he had talked with the third person about going with him and accused to steal

(Court of Criminal Appeals of Texas. Nov. 3, cattle, and that the third person had refused.

1915. Rehearing Denied Nov. 17, 1915.) [Ed. Note. For other cases, _see Criminal 1. CRIMINAL LAW On 1091

! - QUESTIONS RELaw, Cent. Dig. $$ 3145–3153; Dec. Dig. Om VIEWABLE-STATUTORY PROVISIONS. 1170.]

Under Code Cr. Proc. 1911, art. 938, pro2. CRIMINAL LAW 829-INSTRUCTIONS-RE- viding that the court on appeal shall presume

FUSAL OF INSTRUCTIONS COVERED BY IN- that the venue was proven in the trial court STRUCTIONS GIVEN.

unless made an issue therein, and it affirmaWhere the court gave a proper charge on an tively appears to the contrary by bill of excepissue, it was not necessary to give a special re- tions signed and allowed by the trial judge, a quested charge thereon.

bill of exceptions, complaining of refusal to [Ed. Note.-For other cases, see Criminal charge to acquit because the venue had not been Law, Cent. Dig. 8 2011; Dec. Dig. Om 829.]

proven, does not show that the venue was made

an issue during the trial and presents no quesAppeal from District Court, Upshur Coun- tion for review. ty; J. A. Ward, Judge.

[Ed. Note.-For other cases,

cases, see Criminal Dave Durley was convicted of cattle theft, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943;

Law, Cent. Dig. $$2803, 2815, 2816, 2818, 2819, and he appeals. Affirmed.

Dec. Dig. Om 1091.] C. C. McDonald, Asst. Atty. Gen., for the 2. CRIMINAL LAW 508-ACCOMPLICES-INState.

COMPETENCY-EXTRINSIC EVIDENCE.

Under Code Cr. Proc. 1911, art. 791, de

claring that persons charged as principals, acHARPER, J. Appellant was convicted of complices, or accessories cannot be witnesses for cattle theft, and his punishment assessed at one another, and article 792, authorizing the two years' confinement in the penitentiary.

court to interrogate a person offered as a wit[1] Pomp Boren testified as a witness for testify, accused charged with gaming may not

ness to ascertain whether he is competent to the state, and stated that he, appellant, and complain because the state proved that a witness Jake Bolton had stolen the cow. In a bill called by accused was indicted for committing of exceptions it is shown that after the wit- the same offense with accused, especially where ness had been excused appellant recalled testify for accused.

the court erroneously permitted the witness to him, and desired to ask him:

[Ed. Note.-For other cases, see Criminal "Did you not, just a short time before the kill- Law, Cent. Dig. $$ 1099-1123; Dec. Dig. Om ing of this Brawley cow, have a conversation 508; Witnesses, Cent. Dig. $8 244–248.] with Early Skinner, in which just you and 3. CRIMINAL LAW Ow117012 – RULINGS ON Early Skinner were together, in which you stat

EVIDENCE-PREJUDICIAL ERROR. ed to him or asked him to go with you to kill

The state may, to disqualify accused's witsome cattle, and he refused to do it?"

ness under Code Cr. Proc. 1911, arts. 791, 792, The court sustained the objection, and of prove that he was also indicted for the same this action of the court appellant com- offense, and the mere fact that the court in per

mitting the state to prove that fact erroneously plains. The witness Boren had confessed he stated that the evidence was admissible to affect was a thief, and had aided in the theft of the credibility of the witness was not prejuthe Brawley cow, and to prove that he desir- dicial to accused. ed to get Skinner to aid in stealing other cat- [Ed. Note. For other cases, see Criminal Law, tle would not add to his moral turpitude. Cent. Dig. $$ 3129-3135; Dec. Dig. Cm117012.) In addition to this, the record discloses that 4. GAMING 72—CRIMINAL OFFENSES—"PRIon direct examination he had testified that

VATE RESIDENCE."

Pen. Code 1911, art. 548, making card playwhile rabbit hunting he had talked with ing in any place other than a private residence Early Skinner about going with him and ap- occupied by a family an offense, makes it an pellant to steal cattle, and Early Skinner offense to play cards in the private room of a

boarder at a hotel or boarding house; the boardhad refused. So that the testimony soughter being a single man and no family occupying to be elicited would have been but a reitera- the room. tion of what he had already testified to [Ed. _Note.-For other _cases, see Gaming, when first called as a witness.

Cent. Dig. 88 168-186; Dec. Dig. Om72. [2] The only other bill of exceptions in

For other definitions, see Words and Phrases,

First and Second Series, Private Residence.) the record complains of the action of the court in overruling his motion for a new Appeal from Tyler County Court; Tom F. trial, and in it—the only other question Coleman, Judge. than that discussed above-is that the charge Pink Fondren was convicted of gaming, of the court on alibi placed the burden on and he appeals. Affirmed.

Tex.)

FONDREN V. STATE

1171

Joe W. Thomas, of Woodville, for appel-, was under indictment for the same offense. lant. C. C. McDonald, Asst. Atty. Gen., for The objection to the witness testifying should the State.

have been sustained. Article 791, C. C. P.,

specifically declares that Williford was not HARPER, J. Appellant was convicted of a competent witness for defendant. Article gaming, and his punishment assessed at a 792 provides that evidence may be introduced fine of $12.50.

to prove him an incompetent witness. ConWill Harris testified:

sequently, there was no error in permitting “I live at Warren, Tex. I am deputy sheriff the state to introduce evidence that Williford of Tyler county, and was on January 16, 1914. was indicted, charged with the same offense. I remember the occurrence on the night of January 16, 1914, where two parties and myself The only error committed was in permitting found Pink Fondren and Albert Pennington the witness to testify after the state had and Joe Williford. This occurred in an old made this proof. As the defendant called store building and warehouse used one time by Williford as a witness, he will not be heard George Wooley; the back used as warehouse. It is composed of two rooms, the front room used to complain that the state offered proof at one time as a cold drink stand. We found showing that he was an incompetent witness the door on north side of back room barred and And especially has he no ground of compaper in the keyhole. We came around to the window and couldn't get in on that side. Got plaint, since the court erroneously overruled a stick, then got out my knife and cut a hole in the objection and permitted the witness to an old comfort that was used as a blind over testify at his instance. the window. It was a cheap comfort, with the

As to Albert Pennington, it was permissicotton scattered in it, and you could see through it; cost about 75 cents or $1. They had two ble for the state to seek also to disqualify boards placed edge on edge at the bottom of the him as he was also indicted for the same quilt as a dead fall. I could see motions of offense.

I could see motions of offense. However, there was no error in percards through the comfort, and after I cut it I could see them good. They were playing cards. mitting him to testify for the defendant, as he I know they were playing cards. I watched testified he had paid his fine. When he was them about 15 minutes, until I got tired." convicted and paid his fine, this removed the

[1] While the case was being presented to bar of incompetency as a witness. The fact the jury, and after the evidence had closed, the court said he would permit the state to appellant requested the court to instruct make the inquiry to affect the credit of the the jury to return a verdict of not guilty on witnesses does not render the inquiry impropthe ground that the venue had not been er; it was only giving a wrong reason. The proven. This contention would have been testimony was not admissible to affect their sound had not article 938 of the Code of credit, but was admissible on the issue of Criminal Procedure been amended in 1897. whether or not they were competent to tesBy that article it is now provided this court, tify as witnesses for appellant. As before on appeal, shall presume that venue was stated, the court erred in permitting Williproven in the court below, unless such mat- ford to testify for defendant after the proof ters were made an issue in the court below, had been made, but there was no error in and it affirmatively appears to the contrary permitting Pennington to testify as he showby bill of exceptions properly signed and al- ed he had paid the penalty. As the defendlowed by the trial judge. The only bill in the ant got the benefit of both the competent record relating to this matter is one reserv- and incompetent witness, it is a matter of ed to the failure of the court to give this spe- which he cannot be heard to complain. cial charge. This in no way evidences that [4] Appellant contends that, if he did play venue was made an issue during the trial at a game of cards (which he denies), it of the case, and, if in fact we take the rec- was in his room in Poland's boarding house. ord as a whole, the statement of facts evi-W. I. Poland testified: dences that no such issue was made on the "I lived in Warren, Tex., on the night of trial, but the whole case proceeded upon the January 16, 1914. Was then, and my family theory that the house in Warren in which are now, running the boarding house at Warren. the deputy sheriff of Tyler county says he we live in, and the other I use for my boarders

I have two houses, about 100 yards apart. One found appellant and two others gaming was to room in, and the house in question where in Tyler county. Barker v. State, 47 S. W. Joe Williford and Dick Barclay slept at that 980. While it may be said that there is no ment for my boarders, and Joe Williford occu

time was then used by me as a sleeping apartone who swore positively that the house, in pied the middle room, slept there and had all which the card playing is said to have taken his clothes, a grip, etc., in that room, also at place, was in Tyler county, yet the jury, un-household goods in that room of Joe Williford. der the facts and circumstances in this case, He asked me to let him store them in there for would have been authorized to so find had a few days, and I let him do so. They were that been made an issue and the court sub-moved in about two weeks, just so soon as he mitted it to the jury in his charge.

could get him a house. Joe Williford used that

room just as any boarder uses a room to live [2, 3] By the above testimony it is seen and sleep in; it was his private room. He had that the state's witnesses testified that ap been working and boarding with me about two pellant, Albert Pennington, and Joe Willi- or three months using the room in that manner.” ford were playing together. When the de- Counsel cite a great many old authorities fendant called Joe Williford as a witness, holding that it is no offense to play in one's does not recall that this is no longer the all those Mexicans except one were bachelaw in this state. The statute now provides, lors; that one was a married man, but his and has provided for several years, that card wife was in Mexico; that these Mexicans playing in any place, other than a private did their own cooking in the car occupied by residence occupied by a family, is an offense. them and ate their meals therein and also See Pen. Code, art. 548, as amended in 1901. slept therein; that none of them ate or slept Since the amendment of that article of the or had their meals prepared in the cars ocCode, it has always been held to be an of- cupied by him and his family. fense to play cards in the private room of a We had occasion, in the recent cases of boarder at a hotel or boarding house. Installings v. State, 170 S. W. 159, and Sloan this case it was not contended that appellant v. State, 170 S. W. 156, to discuss the statute was a married man, and his family resided and what in contemplation of our present in the room. All of the record demonstrates law was a private residence occupied by a that no family occupied the room. The evi- family in which card playing could be indence of the absent witness was therefore dulged without violating the law. We also material to no issue in the case, and the cited and discussed many cases decided by facts it was alleged could be proven by him this court. Under the statute as it now is were not contested, and were proven by Mr. and said decisions, we think that the car Poland and other witnesses, and if true where appellant and his associates were gamwould be no defense.

bling was not a “private residence” occupied The judgment is affirmed.

by a family, nor was it the private residence of the section foreman and his family. See, also, Fondren v. State, 179 S. W. 1170, this

day decided. We think the case of Hipp v. GARCIA V. STATE. (No. 3778.) State, cited by appellant, 45 Tex. Cr. R. 200, (Court of Criminal Appeals of Texas. Nov. 3, 75 S. W. 28, 62 L. R. A. 973, is not applicable 1915.)

to this case. GAMING O72- CRIMINAL OFFENSES — "PRI

The judgment is affirmed. VATE RESIDENCE.

A railroad box car set flat on the ground is not a "private residence" within the statute punishing gaming, where the car was only occupied by men who did their own cooking in the

COLEMAN v. STATE. (No. 3743.) and ate their meals therein and slept (Court of Criminal Appeals of Texas. Oct. 27, therein.

1915. State's Rehearing Denied [Ed. Note.-For other cases, see Gaming,

Nov. 24, 1915.) Cent. Dig. 88 168-186; Dec. Dig. On 72.

1. CRIMINAL LAW 595- CONTINUANCE For other definitions, see Words and Phrases, ABANDONMENT AFTER SEDUCTION AND MARFirst and Second Series, Private Residence.] RIAGE-EVIDENCE-MATERIALITY.

In a prosecution for abandonment after Appeal from Lee County Court; John H. seduction and marriage, the testimony of a witTate, Judge.

ness, on account of whose absence a continuance Miguel Garcia was convicted of gaming, was sought, and who if present would testify

that before the alleged seduction he saw prosand he appeals. Affirmed.

ecutrix and a person other than defendant in Wm. O. Bowers, of Giddings, for appellant. the act of sexual intercourse was material on the

issue of the virtue and chastity of prosecutrix, P. J. Alexander, Co. Atty., of Giddings, and especially where there was evidence of other C. C. McDonald, Asst. Atty. Gen., for the improper conduct by prosecutrix. State.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 1311, 1323-1327; Dec. Dig.

On 595.] PRENDERGAST, P. J. Appellant was 2. CRIMINAL LAW Ow598—DENIAL OF CONconvicted of gaming, and the lowest fine im- TINUANCE-DILIGENCE. posed.

The denial, for lack of diligence, of a conThe evidence, without question, is amply tinuance in a criminal case because of the absufficient to sustain the conviction. Appel- peared that once before the witness had failed

sence of a witness was erroneous, where it aplant contends that the evidence shows that to attend court, and an attachment had been where the gaming occurred was a private issued, and he had been placed under bond, after residence occupied by a family, and hence which he attended court regularly, and that

when he failed to appear on the first day of the the conviction cannot be sustained. We

present term, defendant had other process isthink his contention is untenable. On this sued to him, and it did not appear that, though issue the evidence shows that appellant and the witness had left the state, defendant knew, several other Mexicans were caught gam- 01 had reason to believe, that he had gone. bling with cards in a railroad box car with-Law, Cent. Dig. $8 1335–1341; Dec. Dig. Om

[Ed. Note.-For other cases, see Criminal out. wheels and set flat on the ground. The 598.] section boss testified that he and his family 3. HUSBAND AND WIFE Cw313 ABANDONoccupied two such cars, where they ate, slept, MENT AFTER SEDUCTION AND MARRIAGEand lived; that where these Mexicans, in- EVIDENCE. cluding appellant, were caught gambling, was after seduction and marriage, the evidence show

Where, in a prosecution for abandonment in another box car 250 feet distant from theed that both prosecutrix and defendant had cars occupied by him and his family; that dark hair and were of dark complexion, that Tex.)

COLEMAN V. STATE

1173

prosecutrix's baby and uncle both had red hair ance. This continuance was sought on acand were of ruddy complexion, and that the count of the absence of W. S. Strain. He uncle had for several years prior to the alleged seduction made his home with the father of states the witness would swear if present prosecutrix, it was error to exclude the testi- that: mony of a witness that on a certain occasion he "In July, 1911, while on the road leading from saw a woman, whom he believed from facts Oak Grove to the house of prosecutrix, he obstated to be prosecutrix, sitting in the uncle's serred prosecutrix and one whom he took to be lap.

Put Bodwell in the act of sexual intercourse.' [Ed. Note.-For other cases, see Husband and

This is prior to the time that prosecutrix Wife, Cent. Dig. $$ 1110; Dec. Dig. Om 313.] 4. HUSBAND AND WIFE 302 – ABANDON says appellant led her astray under a promMENT AFTER SEDUCTION AND MARRIAGE-OF- ise of marriage. The materiality of this tesFENSE.

timony is made more apparent by other tesIt is not essential to the right to prose- timony in the record. cute for abandonment after seduction and mar

Emmett Phillips testified he went with the riage that the marriage shall have taken place after indictment, but is sufficient that a com- prosecutrix, prior to the date of the alleged plaint charging seduction shall have been filed, seduction, to church and other places; that a warrant issued, and defendant arrested.

she permitted him to place his arms around [Ed. Note.-For other cases, see Husband and her, hug, and kiss her. Wesley Hazlewood Wife, Cent. Dig. § 1100; Dec. Dig. Ons 302.) 5. AND –

testified that prosecutrix had willingly per

ABANDONMENT AFTER SEDUCTION AND MARRIAGE-mitted him to kiss her on divers and sundry EVIDENCE.

occasions. J. R. Morrison testified he had In a prosecution for abandonment after occasion to go to the home of prosecutrix seduction and marriage, defendant's evidence that he married prosecutrix under duress, and to see her father, Mr. Burton; that no one not voluntarily, and that he immediately else was at home except prosecutrix, and she brought suit to annul the marriage, alleging was dressed in man's clothes, and pulled a duress as grounds for annulment, was admis- razor out of her pocket; that he asked her sible to rebut the presumption arising from the marriage that he was guilty of seduction.

if she was fixing to shave, and she merely [Ed. Note.-For other cases, see Husband and laughed; that on another occasion he was Wife, Cent. Dig. & 1110; Dec. Dig. 313.] driving by the home of prosecutrix, and he 6. HUSBAND AND WIFE 313 – ABANDON- saw her dressed in men's clothes sitting

MENT AFTER SEDUCTION AND MARRIAGE- astride of the water shelf on the gallery, in EVIDENCE-DIVORCE DECREE.

In a prosecution for abandonment after about 15 steps of the public road, and in seduction and marriage, a decree, divorcing de- plain view of the road. Morrison says his fendant from prosecutrix, not being binding on daughters were with him on this latter occathe state, was not admissible in evidence.

[Ed. Note.-For other cases, see Husband and sion, and one of them remarked, “I will Wife, Cent. Dig. § 1110; Dec. Dig. Om313.]

swear to God, Hattie,” when Hattie, pros

ecutrix, replied, “I am not ashamed;" that · Appeal from District Court, Bowie Coun- he saw her dressed in men's clothes on other ty; H. F. O'Neal, Judge.

occasions. This all occurred prior to the alBascom Coleman was convicted of aban, leged seduction, and one of the contentions donment after seduction and marriage, and of appellant is that the prosecutrix was not appeals. Reversed and remanded.

a chaste and virtuous woman at the time of J. S. Crumpton, of New Boston, for appel- and prior to the date on which he was charglant.

Hugh Carney, Dist. Atty., of Atlanta, ed with this offense. At this date Miss Hatand C. C. McDonald, Asst. Atty. Gen., for tie was 19 or 20 years of age. If he could the State.

have followed this testimony with the testi

mony of the witness Strain, it is readily seen HARPER, J. Appellant was convicted of how material it would have been on the isabandonment after seduction and marriage sue of the young lady's virtue and chastity. and his punishment assessed at 6 years' con- [2] The court overruled the application on finement in the state penitentiary.

account of lack of diligence. It appears from The testimony of appellant would show the record that once before the witness had that he admitted having sexual intercourse failed to attend court, and an attachment with the young lady on a number of differ- was issued and he was placed under bond ent occasions, but he most emphatically de-and, after being placed under bond, had atnies it was under promise of marriage, or tended court regularly, and was present at that he was ever engaged to marry her. This the term of court immediately preceding the is the second appeal in this case, the opin- one at which the trial was had. On the first ion on the former appeal being reported in day of this term of court, the witness failing 71 Tex. Cr. R. 20, 158 S. W. 1137. As the to appear, appellant at once had other procopinion in that case states the evidence rath-ess issued for him to Bowie county. In the er fully, we deem it necessary to state only contest to the motion, it is shown that since that portion of the testimony rendered nec- the last term of court, the witness Strain essary in passing on the various bills of ex. had gone to Oklahoma. If appellant knew, ception.

or was shown to have been made aware, of [1] The first bill relates to the court over- any fact that would put him upon inquiry ruling his second application for a continu- ) whereby he could have ascertained that the

witness had gone to Oklahoma, then certain- , marriage must have taken place after inly he would have been lacking in diligence. dictment found before a prosecution could be While the fact is shown that the witness maintained for abandonment after seduction had perhaps gone to Oklahoma at the time and marriage. This is not a correct conthe last process was issued at the beginning struction of the statute. A prosecution is of this term of the court, yet there is nothing begun by the filing of the complaint charging in the record that would suggest that appel- him with the offense. It is the offer of marlant was aware of the fact, or in possession riage that must take place before pleading of any fact that would put him upon inquiry to an indictment for the offense. The facts so as to ascertain that fact. He had had the in this case would show that a complaint witness placed under bond to attend court, was filed, charging appellant with seduction, the witness had attended the two terms im- warrant was issued, and he was arrested. mediately preceding the term of the court, If those steps are taken, and appellant marand we think the continuance should have ried her to avoid a prosecution for seducbeen granted; for it is shown that upon a tion, and then abandoned her without cause, former occasion the witness had testified to he could be prosecuted for abandonment aftthe statement appellant states he desired to er seduction and marriage, and the bills raisprove by him, which was upon a most mate-ing these questions present no error. rial issue in the case, and, if true, would en [5] However, when it is proven that a comtitle appellant to an acquittal.

plaint has been filed; that appellant was [3] On the trial of the case, while the pros arrested thereon; that he subsequently marecutrix was testifying, appellant proved by ried the girl, and the prosecution for seducher that the color of her hair was black or tion dismissed, this evidence would have a dark; that she was dark-skinned, and that tendency to prove him guilty of having seappellant also had dark hair and was of duced the girl, and if appellant desired to indark complexion. He then proved by her troduce testimony that, instead of marrying that the baby, which at the time of this trial | the girl voluntarily, he was forced and comwas between 2 and 3 years old, had red hair pelled to do so, he should be permitted to and was of light or ruddy complexion, and do so to rebut the presumption arising from was freckled. He also proved that Bud the marriage that he was guilty of seducWolfe was red-haired and had a ruddy com- tion. The state's testimony would have applexion, and was making the home of the pellant admitting his guilt to the father, and father of prosecutrix his home at the time voluntarily marrying the girl after prosecuof and for several years prior to the alleged tion was begun, and then abandoning her. seduction; that she was about 20 years old The appellant contends that he did not adat the time, and that Bud Wolfe was about mit his guilt to the father or any other per24 years of age; that he was her uncle. son; that he told the father he had never After making this proof he called G. C. Sar- been engaged to the prosecutrix, and refused gent as a witness, who, if he had been per- to accompany the father to his home, and mitted, would have testified:

that he was then arrested; that by the acts "That he had occasion to stop in front of and conduct of prosecutrix's father and broththe home of the parents of the prosecutrix after ers, Bud Wolfe, and other relations he was night during the year 1911, and that he looked forced to marry the girl to avoid trouble; through a window in said home and saw Bud Wolfe, a man whom he recognized. Later a that immediately after the marriage (the woman came by and the said Wolfe caught first opportunity) he left, and almost immehold of her and pulled her down in his lap. diately brought suit to annul the marriage, That the witness was well acquainted with the Burton family. That he knew that there were alleging duress as grounds why the marriage only two grown women that resided on said should be declared void. These facts and place, to wit, the prosecutrix and her mother. all evidence bearing thereon should be adThat he knew that it was not her mother, and mitted in evidence on another trial. that, taking the size and features and because of his acquaintance with the prosecutrix, he [6] But the court did not err in excluding took it to be she that was sitting in the lap the judgment decreeing a divorce. That of the said Wolfe, and that to the best of his judgment would not be binding upon the state knowledge, it was prosecutrix that he saw in the lap of the said Bud Wolfe."

in its prosecution. It was not a party to the

. The court erred in sustaining objection to divorce suit, and could not be bound thereby.

Greenleaf on Evidence, vol. 1, page 581, lays this testimony. The fact that Bud Wolfe

down the following rule: was her uncle would go to the weight to be given the testimony and not its admissibil- that as a general rule a verdict and judgment

“Upon the foregoing principles it is obvious ity, and whether or not his testimony suffi- in a criminal case, though admissible to estabciently identified the prosecutrix in this case lish the fact of the mere rendition of the judgas the woman sitting in his lap would also ment, cannot be given in evidence in a civil be upon the weight to be given it, and not action to establish the facts on which it was ren

dered. If the defendant was convicted it might go to its admissibility. He states facts that. have been on evidence of the very plaintiff in if true, would render it morally certain that the civil action; and, if he was acquitted, it it was the prosecutrix in Wolfe's lap on may have been by collusion with the prosecu

tor. And beside this, and upon more general that night.

grounds, there is no mutuality. The facts are

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