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decency within the prohibition of the ordi- , ent bold. State ex rel. v. Smith, 176 Mo, 44, nance. The charge against defendant was loc. cit. 48, 75 S. W. 468; Carthage v. Block, that, contrary to the ordinance, he was on 139 Mo. App. 386, 123 S. W. 483; City of St. the street associating with Edna Geery, a Louis v. Roche, 128 Mo. 541, 31 S. W. 915. female of ill repute. The motion to quash pre This court, for the reason mentioned, is sented the following grounds:

without jurisdiction, and the case, therefore, "(1) Because the ordinance upon which the is transferred to the Kansas City Court of complaint was based is unconstitutional and Appeals. . void, and infringes upon the rights of personal liberty, and is void.

“(2) Because said complaint charges no crime ROY, C., concurs. known to the law, and there is no authority or law on which to base said ordinance, or a com

PER CURIAM. The foregoing opinion by plaint on said ordinance, because said ordinance is unconstitutional and void.

WHITE, C., is adopted as the opinion of the “(3) Because the ordinance upon which the court. All the Judges concur. complaint is based is absolutely unconstitutional; and it invades the personal rights of a citizen, and the complaint is therefore void." The order sustaining this motion states as

STATE V. BLACKBURN (No. 20332.) a reason for the ruling “that the ordinance on which the complaint is based is unrea- (Supreme Court of Missouri, Division No. 2. sonalle and unconstitutional, and the com

Feb. 16, 1918.) plaint charges no crime or violation of the 1. CRIMINAL LAW m415(1) - HEARSAY Evilaw.”

DENCE. The appellant, though not moving to trans- deceased's efforts to collect a check drawn in

In a trial for murder committed following fer the case, claims that this court has no his favor by defendant in payment for cattle, jurisdiction because the constitutional ques- and which had not been paid, testimony of certion which alone would give jurisdiction was tain witnesses as to deceased's statements in renot properly raised by the motion to quash. gard to the defendant and the collection of the

check, to the effect that he sold the cattle and It often has been held by this court that in held defendant's check, and that the funds were order to give this court jurisdiction on the not at the bank to pay the check, and that deground that the constitutional question is fendant had promised to arrange for payment raised, the provision of the Constitution in the cattle without his knowledge, and that de

in a few days, and that defendant had shipped volved must be pointed out. A general ref- fendant could not pay for what he already had, erence to the Constitution, state or federal, was hearsay and incompetent. will not do. The party asserting the jurisdic- 2. CRIMINAL LAW 419, 420(6)--EVIDENCEtion "must come into the open and put his

RELEVANCY. finger on the specific provision of the Consti

In such prosecution, where defendant claim

ed that his check to deceased was not intended tution touched by the adverse ruling" of to be paid, but was made merely to conceal a which he complains. Lohmeyer v. Cordage land sale, the state might show defendant's inCo., 214 Mo. loc. cit. 688, 113 S. W. 1108; tention by showing his language or conduct in

reference thereto. Independence, to Use, v. Knoepker et al., 205 Mo. loc. cit. 343, 103 S. W. 940; Ash v. City of 3. CRIMINAL LAW 419, 420(1)-EVIDENCE

-HEARSAY. Independence, 169 Mo. loc. cit. 79, 80, 68 S.

The intent of a person may be shown by his W. 888; Excelsior Springs, to Use, v. Etten-acts and words, which are direct and not hearson, 188 Mo. loc. cit. 132, 86 S. W. 255; St. say evidence as to such intent. Joseph v. Life Ins. Co., 183 Mo. loc. cit. 7, 4. CRIMINAL LAW cm393(1)—SELF-INCRIMI. 81 S. W. 1080; State v. Kuehner, 207 Mo. 605, NATION-CONSTITUTIONAL RIGHTS. 106 S. W. 60; Street v. School District, 221

In a trial for murder, the admission of eviMo. loc. cit. 671, 120 S. W. 1159; State v. the coroner's inquest to which he had been sum

dence as to the alleged statements of defendant at Cook, 217 Mo. 330, 117 S. W. 30; Pickel v. moned by the state, where he was not represented Pickel, 243 Mo. 641, 147 S. W. 1059; State v. by counsel, nor informed of his right to refuse Swift & Co., 270 Mo. 694, 195 S. W. 996; to answer questions, and was subjected to a State ex rel. v. Tibbe Elec. Co., 250 Mo. 522, crime, was error, as defendant's constitutional

long, adverse examination under suspicion of the loc. cit. 527, 157 S. W. 635.

protection against compulsory self-crimination The allegation in the motion that the or was thereby denied. dinance "invades the personal rights of the 5. Homicide Eww169(2) – EVIDENCE -RELEcitizen and the complaint is therefore void”

VANCY.

In a trial for murder committed after dedoes not necessarily refer to any constitu- ceased's efforts to collect a check given to him tional provision. The ordinance could have by defendant in payment for cattle, where dethat infirmity if it were unreasonable, or fendant claimed that deceased had purchased oppressive, or ultra vires, or repugnant to his farm, and given him the check in part pay.

ment thereof, but where the making of such con« some general statute or contrary to some tract was not conceded by the state, evidence general rule of law. It could be held inval- as to the value of defendant's farm was admisid for any of those several reasons without sible to show that no such contract was made,

on the theory that a good business man would any reference whatever to the Constitution, not have contracted to pay $11,500 for a farm as some of the authorities cited by respond- not worth over $7,500.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

con

6. HOMICIDE (174(1)—EVIDENCE-FAILURE been shipped, presented to the bank for payTO JOIN IN SEARCH FOR DECEASED.

ment a check drawn in his favor by the In a trial for murder, it was not error to defendant for $1,200. It was not paid for permit the state to show that the defendant took no part in the search for the deceased, the lack of funds to the defendant's credit. It weight of such evidence being for the jury. was left with the bank for collection. On 7. HOMICIDE Om 250 — MURDER-SUFFICIENCY the next day, Tuesday, November 9, Francis OF EVIDENCE.

met Evans, the cashier of the bank, at a sale Evidence held sufficient to support a convic in the country, and was informed by the tion for murder.

latter that the defendant had shipped the Appeal from Circuit Court, Camden Coun. cattle. That evening, about sundown, Franty; C. H. Skinker, Judge,

cis was in Stoutland. Evans was a witness Charles Blackburn was convicted of mur. for the defendant. On cross-examination he der, and he appeals. Reversed and remanded was asked what Francis said and did at for a new trial.

that time with reference to the collection Defendant was charged by information with of that check. Defendant's counsel objected the murder in the first degree of Jasper Fran- on the ground that it called for nearsay cis on November 10, 1915. He was

evidence which was not a part of the res

The victed, and his punishment fixed by the jury gestæ, and not a dying declaration. at life imprisonment. He has appealed.

objection was overruled, and the witness The evidence for the state tends to show stated that he and the deceased talked about the following facts: Both the deceased and why the returns for the cattle were not there, defendant were farmers and stockmen, with and that deceased stated that he would wire farms on the same road leading out of Stout- the commission company to find if the cattle land, the defendant's being about 242 miles had been sold and where the returns hac from town, and that of Francis being about been sent, and that deceased went to the 4 miles further on. The deceased was a station to see the agent, saying, after seeing bachelor, about 46 years old, in comfortable the agent, that he would go by Blackburn's circumstances financially, a director in the and tell him that something had to be done. bank at Stoutland. The defendant was about Over similar objections by defendant, the 43 years old. His farm contained 260 acres state was allowed to prove by Reube Winfry and was worth about $7,500. His wife own- that deceased spoke of the $1,200 check, ed a house and about 5 acres of land in town, and said that he thought that Blackburn where they lived. He spent much of his time on the farm, often passing the night and was allowed to prove by Rolla Smith,

was trying to cheat him out of the cattle; there. His farm was incumbered for $4,000 assistant cashier of the bank, that deceased and some interest. The home in town was in the bank, on November 9, said that if the incumbered for $2,000, and he owed the bank returns did not come by morning he would about $3,000 in notes signed by himself and wife. The bank was pressing him for a garnish everything that Blackburn had; and payment of at least a portion of that money, was allowed to prove by John Fry, station About October 30, 1915, defendant and de- agent at Stoutland, a conversation with ceased made a trade by which deceased Francis as follows: sold and delivered to defendant cattle for "Q. What is it? A. He asked me if Charley $1,400, and received in part payment thereof Blackburn had shipped the car of cattle. I a span of mules at $200. It seems that de- told him he had; that he had shipped them on fendant did not then pay the balance of $1,- he had shipped them to.

the Sunday previous. Then he asked me who

I told him to Clay200 due on the cattle. Rolla Smith, assistant Robinson & Co. He then wanted to wire to cashier of the bank, testified that in the latter Clay-Robinson & Co. in regard to the returns. part of the week preceding the death of The hour was late, and I recommended him, on Francis the latter appeared in the bank, ask- account of the lateness of the hour, to wait

or put it off until morning, when probably the ed the amount of the defendant's indebted-returns would get in; that it would not be ness to the bank, and was informed that it necessary to wire, and, even if he did, it would was about $3,000; whereupon Francis said: be about the same time in the morning before “Charley has sold his farm and has got the that late hour of the day. He said then he be

the message would be delivered if it was sent at paper and you boys want to get your money. lieved he would do that, and that he would go I know he has sold his farm, because I wrote up the note for him and check a few days ago. he state anything else? Is that all of his state

over and see Virgil Evans at the bank. Q. Did The

note is for $3,000 and the check for $1,500. ment to you at that time? A. No, sir; that was He has sold his farm to Joe Givins, and is receiving this note and check for $1,500, and he not all that was said. Q. Did he state why he is, assuming $3,000 against the land,' making was anxious to wire to Clay-Robinson & Co.? $7,500. Your note will be due the first

thing, A; He told me he had exchanged the cattle with and you boys want to get in and get your that he held Blackburn's check for $1,200, and

Charley Blackburn for $1,200 and two mules; money."

the funds were not yet in the bank to pay the On Sunday, November 7, the defendant ship-check; that Blackburn had said to him he ped the cattle to the St. Louis market, order-would arrange for the money, and that it would ing the returns to be sent to Lebanon instead be in there in a few days. He said as long as of to the bank at Stoutland. On the next day he did not care, but since he has shipped them

the cattle were running upon Blackburn's land Francis, not knowing that the cattle had]I am going to do something about it."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 201 S.W.-7

as

And by Charles Winfry a conversation not advised of his right to refuse to answer with Francis as follows:

questions, nor was he advised that his an“Q. Yes, sir. A. When we started from the swers might be used against him. He was sale" he says: 'Charley Blackburn has shipped there treated as a defendant. At the trial those cattle, and I did not know anything about it until I got down here to the sale. He said: the state was permitted to prove that the 'Virgil Evans told me.' He said: 'He was at defendant, in answer to questions at such my house this morning, and he never told me a inquest, stated that he gave the check for word about it. He said he was going to Joe $1,200 to Francis for cattle, and also said Givins' to see about the money that Joe had sent, and sent to the wrong place; it is a funny that the two $1,200 checks were given as a thing to me that he don't know where Stoutland bonus in a land deal. Defendant objected to is at.' He says: 'I am going on to town and such evidence on the ground that such statesee if that draft has come; if not, I am going ments were not, under the facts shown, volback by Charley Blackburn's and tell him what is what; I am not going to lose my money on untary. The objection was overruled. The those cattle.' He says: 'I will garnishee every- defendant, on the trial, testified that about thing he has got before to-morrow night if I | October 30, 1915, he sold his farm to Francis don't get the money; all I have got to show is the two little mules and this check” that he for $11,500, to be paid thus: had up at the bank. He said Charley Black- Balance on cattle....

$ 1,200 00 burn was talking of buying his place, but he Check

1,500 00 could not pay for what he already had."

Note

3,000 00 Francis to assume on land.

3,000 00 We have put in italics portions of that

give mortgage for.. 2,000 00 evidence to which we will call special attention in the opinion.

$10,700 00 The last seen of Francis alive was he was on his way home just as he was leav

—and that Francis was to pay balance in ing town that evening. About 12 days later money. He stated that a few days after such his dead body was found about 20 yards from to him the note for $3,000 and the check for

deal Francis wrote, signed, and delivered the road, between the defendant's house and town, covered with leaves. There was a shot $1,500; that Francis made a memorandum of in the head, and the skull was fractured the contract, but that it was not signed by by some other weapon. There was clotted either of them; that they were to close the blood by the roadside. Mrs Kissinger, who

deal and make the deed later on. During lived near the place, testified to hearing a his direct examination he was asked why the gun shot about the place where the death two $1,200 checks were given. He answered occurred, on the morning of November 10, that Francis desired to keep secret for a few about 5 o'clock.

days the fact that he had bought defendant's Claude Castile and his wife testified that farm, for fear that if such fact should be they lived next door to the defendant in come known it might prevent the sale which town, and that on the morning of November Francis desired to make of his own farm. 10, about 6 o'clock, they saw defendant in As to his conversation with Francis he testihis yard in town, and that, in reply to a

fied: question, he told them that he had come in for the cattle? that is, for the difference be

"He said, 'Would you care to give me a check town that morning.

tween the mules and the price of the cattle. He On November 11 the defendant appeared told me to give him that $1,200 check and he at the bank, having in his possession a note would take it up. to the bank and turn it over for $3,000 dated October 30, 1915, due 60 to the cashier, Virgil Evans, and he would tell

Virgil about mine and his deal. He said he days after date, a check for $1,500 dated would put the check in there, and if any one November 2, 1915, and a check for $1,200, come in there and said anything to Virgil about dated November 6, 1915. All those instru- Jap buying my farm and about the cattle and ments were payable to himself, and purported them this check, which would show that he had

mules being changed he said Virgil could show to be signed by Francis. He exchanged with sold the cattle to me. So when he was talking the bank the $1,200 check signed by Francis about my giving him a check I told him it would for the $1,200 check signed by himself, which be all right I guessed; that I didn't know there was then held by the bank for collection. that book up this way indicating), and began

would be anything wrong about it. He opened He exchanged the note for $3,000 signed by to write out a check for $1,200 for me to sign. Francis for his own notes to the bank. The Just about the time it was completed I says $1,500 check signed by Francis was put to Jap, how would it do for me to write out a

check for you and you sign it, and let me have defendant's credit, thereby overdrawing the your check and you hold mine?'. So we agreed account of Francis, and a few days after he to that; we agreed to do it in that way. That checked out the most of it.

is the way the $1,200 check business came up." Soon after the discovery of the dead body,

He stated that such transaction occurred the coroner's inquest was held. The exami- November 6th. nation of witnesses at that inquest was con

Simpson Francis, a brother of the deceased, ducted by state's counsel, who suspected de- testified that on Sunday, after the deceased fendant of the offense. The defendant was disappeared, he called up the defendant, asksubpænaed and sworn as a witness and sub- ing him if he had seen the deceased, and mitted to a long and adverse examination. that defendant answered: Everything he said was in answer to such

"Ile was going to meet me in Lebanon, but be questions. He was without counsel, and was didn't go. I guess you don't know what we were

was

going for. I will tell you. I was selling him | leged land trade. Defendant's own testimony my farm, and I was going up there to pay the is to that effect. When the state is met by mortgage off to Wallace. We are going to Linn such a claim, backed up by evidence, it cerCreek Tuesday to finish up the deal."

tainly has the right to show what the intenThe defendant objected to evidence on the part of the state as to the value of defend- tion of Francis was in that respect, by showant's farm on the ground that it was purely thereto. In Waterman v. Whitney, 11 N. Y.

ing his language and conduct in reference a matter of contract between the parties. 157, 62 Am. Dec. 71, Selden, J., said: The objection was overruled. There was no attempt on the part of defendant to show that tween receiving the declarations of a testator

"The difference is certainly very obvious bethe farm

worth more than $7,500. to prove a distinct external fact, such as duThere was testimony both ways as to the ress or fraud for instance, and as evidence meregenuineness of the signatures of Francis to ly of the mental condition of the testator. In said note and checks. Those instruments to all the objections to which the mere declara

the former case it is mere hearsay, and liable and about 14 genuine checks of Francis are tions of third persons are subject, while in the before us for comparison. We venture no latter it is the most direct and appropriate speopinion. The "Paid” stamp of the bank is cies of evidence.” placed twice over the signature to the note, We have not overlooked the fact that in very much obscuring it. The cashier of the that case the subject of inquiry was the tesbank testified that it was the custom to thus tator's mental condition as to sanity; but stamp paid notes. In this case the note is the authorities practically agree that the also stamped by the bank "Paid” on the back. condition of the one's mind as to intent or The genuine checks before us are only stamp-purpose may be shown in the same way, by ed on the back.

the language and conduct of such person eviThe state was allowed to prove that de- dencing such purpose or intent. As to the fendant took no part in the search for the external facts recited in the language of the deceased after his disappearance, over the declarant, that language is hearsay; but as objection of defendant that such evidence to the declarant's purpose or intent, it is diwas immaterial.

rect evidence. 3 Wig. on Ev. f 1725, says: Soon after the coroner's inquest the broth "But, as a condition of mind, the plan or deer of the deceased began suit against the de- sign may also, it is clear, be evidenced under fendant to annul the alleged deal between the present exception by the person's own state

ments as to its existence. The only limitations the defendant and the deceased and to recov

as to the use of such statements (assuming the er the money. Thereupon there was a settle- fact of the design to be relevant) are those sugment between the estate and the defendant gested by the general principle of this exception by which the amount of the checks for $1,200 must be of a 'present existing state of mind,

(ante, section 1714), namely, the statements and $1,500 was restored to the estate and the and must appear to have been made in a natural note for $3,000 was surrendered to the estate. manner and not under circumstances of suspiDefendant kept the mules. Soon after such cion." settlement this prosecution was begun.

That the intent of a person (where such Frank H. Farris, of Rolla, and Phil Don- intent is relevant) may be shown by his acts nelly, I. W. Mayfield, and W. C. Mayfield, all and words, and that such acts and words are of Lebanon, for appellant. Frank W. McAl- direct and not hearsay evidence as to such lister, Atty. Gen., and Henry B. Hunt, Asst. intent is clearly laid down in State v. IlgenAtty. Gen. (Sid C. Roach, of Linn Creek, and fritz, 263 Mo. 615, 173 S. W. 1041, Ann. Cas. L. C. Mayfield, of Lebanon, of counsel), for 1917C, 366. We think that, under the ruling the State.

in that case, the acts and statements of Fran

cis, except as above ruled, are direct and comROY, C. (after stating the facts as above). petent evidence in the case for such purpose. [1-3] I. Appellant claims that the evidence of We suggest that on a retrial of the cause it the witnesses Evans, the two Winfrys, Fry, would be proper to instruct the jury that and Smith, as to statements made by Francis | the force of such evidence should be limited in regard to the defendant and the collection to the showing of such intent. Sotebier v. of the $1,200 check, is hearsay, and for that Transit Co., 203 Mo. 702, 102 S. W. 651 ; reason incompetent. We think that objec- Standard Milling Co. v. Transit Co., 122 Mo. tion well founded as to those portions of that 258, 26 S. W. 704. evidence which we have put in italics in the [4] II. The admission of the evidence as to statement. But as to the remainder of that alleged statements made by defendant at the evidence the claim of the defendant is rather coroner's inquest was clearly an error. He a bold one, under the circumstances of this was summoned by the state as a witness at case. Ordinarily a check shows the inten- such inquest, and was sworn as such witness. tion of both parties thereto that it shall be He was suspected of the crime at that time by paid. The defendant claims that in this case the representative of the state. He was not such ordinary intent did not exist; that the represented by counsel, nor was he informed check was, in the contemplation of both, a of his right to refuse to answer questions. mere pretense--a harmless one it is true He was subjected to a long adverse examinabut only a pretense, made to conceal the al- tion. The constitutional protection of the

defendant against compulsory self-crimina-
tion was thereby denied. It was so held in STATE V. MUNROE. (No. 20649.)
State v. Young, 119 Mo. loc. cit. 520, 24 S. W. (Supreme Court of Missouri, Division No. 2.
1038; State v. Naughton, 221 Mo. 398, 120

Feb. 16, 1918.)
S. W. 53; State v. Lehman, 175 Mo. 619, 75
S. W. 139.

1. BANKS AND BANKING 85(1)–RECEIVING

DEPOSIT WHEN INSOLVENT ISSUES AND [5] III. Defendant contends that the ad

PROOF. mission of evidence as to the value of his Under Rev. St. 1909, 8 4585, making it an farm was error. It is contended that the offense for officers of a banking institution, or question of such value is one solely of con-owner, agent, or manager" of a private bank, tract between the parties thereto, and that institution is insolvent or in failing circum

to receive deposits knowing that such banking it is of no concern to any one else. That may stances, or the "owner or owners of any such be conceded, perhaps, where the existence private bank” is insolvent or in failing circumof the contract is not in controversy. The stances, an indictment against the managing

officer of private bank must allege, and the proof making of such contract is not conceded by must show, that the owner of such private bank the state, and such evidence is competent for was insolvent or in failing circumstances. the purpose of showing that no such contract | 2. BANKS AND BANKING O84-OFFENSES BY

OFFICERS-ELEMENTS. was ever made, on the theory that a good

To warrant conviction of the offenso defined business man would not probably contract to by Rev. St. 1909, $ 4583, of receiving a deposit pay $11,500 for a farm not worth over knowing a private bank to be insolvent, it is $7,500.

not necessary that accused should have had [6] IV. Defendant likewise contends that ultimate authority in managing the bank, if he

was in fact intrusted with the duty of recciving it was error to permit the state to show that deposits, since he was then the agent of the the defendant took no part in the search for owner. the deceased. We are cited to State v. Gor-3. CRIMINAL LAW 369(1) EVIDENCE OF don, 199 Mo. loc. cit. 592, 98 S. W. 47, where

OTHER OFFENSES-ADMISSIBILITY.

In prosecution of a banking officer for reit was said:

ceiving deposit knowing that bank was insol"Again, our attention is directed to the cir- vent, testimony of other deposits just preceding cumstance that the defendant, upon seeing his the one involved was inadmissible, each deposit wife lying motionless and dead, did not call to constituting a separate offense. her, nor did he touch her or the gun. We dare 4. INDICTMENT AND INFORMATION Cm128say that if conditions similar to those con MULTIPLE COUNTS-PROPRIETY. fronting the defendant upon the morning his In drawing an information under Rev. St. wife was killed should surround a hundred men, 1909, $ 4585, making it an offense for a banking no two of them would act alike. There is no officer to receive a deposit of money or other accounting for the conduct or actions of a man valuable thing knowing the bank to be insolvent, under the circumstances surrounding the de- it is proper by using two counts to charge the fendant at the time he went into the kitchen deposit of a draft as a deposit of money and as and found his wife dead, and his conduct and a deposit of a valuable thing. actions at that time, under conditions confronting him, in our opinion, are of little significance.

Appeal from Circuit Court, Jefferson CounNo man can tell what would be the actions of a ty; E. M. Deering, Judge. person similarly situated; therefore we are un Robert B. Munroe was convicted of receive willing to attach to the conduct and actions of ing a bank deposit knowing the bank was the defendant at that time the importance that learned counsel for respondent so earnestly in- insolvent, and he appeals. Reversed and resist upon."

manded for a new trial,

Defendant was tried in the circuit court of The context shows that the court was there discussing the sufficiency of the evidence to him with having, as agent of a certain private

Jefferson county upon an indictment charging sustain a conviction. The admissibility of such evidence was not discussed.

It was

bank, received a deposit of money knowing there said that it was "of little significance.” that said bank was at the time insolvent and We hold that the failure of the defendant in

in failing circumstances. Being convicted this case to join in the search for the de- upon this charge, he has, after the usual ceased was a competent circumstance to be motions, appealed.

Such of the facts as are necessary to an shown in evidence. Its weight was for the jury.

understanding of the points raised upon this [7] V. Defendant contends that there is no appeal run substantially thus: On and prior sufficient evidence to support a conviction, to the 9th day of April, 1915, one Otis M. We are sorry to say that we are of a con- Munroe, the father of defendant, was the trary opinion. The judgment is reversed,

owner of a private bank in the town of De and the cause is remanded for a new trial. Soto, known as the Jefferson County Bank.

Defendant was and had been for some years

employed in this bank, and had assumed the WHITE, C., concurs.

title of assistant cashier. The deposit for

the receipt of which defendant was convictPER CURIAM. The foregoing opinion of ed was made on the 1st day of April, 1915, ROY, C., is adopted as the opinion of the and consisted of a draft for the sum of $800, court. All the Judges concur.

drawn by a building and loan association of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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