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sor, and act therein in heat of blood and not Provocation caused by words only is not exclusively in his own defense. State v. sufficient to reduce a homicide from murder Quick, 64 S. E, 168, 169, 170, 150 N. C. 820 to “manslaughter.” Petty v. State, 89 S. W. (citing State v. Miller, 17 S. E. 167, 112 N. C. 465, 467, 76 Ark. 515. 878; State v: Crane, 95 N. C. 619; State v.

Testimony of a statement made by deTackett, 8 N. C. 210).

ceased to defendant and to some of defendThe mere belief by defendant that he ant's sisters, who were present, that they was in danger of having some injury inflicted were bitches, or damn bitches, does not raise upon him, without any reasonable grounds the issue of insulting conduct toward a famfor entertaining such belief, has never been ily relative of defendant. Johnson v. State, recognized by the courts of this state or any 84 S. W. 824, 826, 47 Tex. Cr. R. 523. other state to which our attention has been called, as being sufficient to reduce the grade, immediate influence of passion arising in bis

Where accused killed another under the of the crime from “murder" in the first or mind from information given him by his wife second degree to “manslaughter." State v.

to the effect that deceased had used insulting Clay, 100 S. W. 439, 442, 201 Mo. 679.

language to her, defendant believing and in A slight assault does not excuse the kill- good faith acting on the information, such ining of an assailant with a deadly weapon, so formation was to him an adequate cause, reas to reduce the offense from the grade of ducing the crime to manslaughter, whether murder to that of manslaughter. State v.) the insults had been in fact offered or not. Wiggins (Del.) 76 Atl. 632, 6:35, 7 Pennewill, Melton v. State, 83 S. W. 822, 824, 47 Tex. Cr. 127; Same v. Borrelli (Del.) 76 Atl. 605, R. 451. 607, 1 Boyce, 319.

In a prosecution for manslaughter, whereWhen words of decedent are accompa- in it appeared accused killed deceased while nied by acts showing a purpose to commit vi- endeavoring to gain possession of a house ocolence on accused, as by raising and pointing cupied by the deceased, there was evidence at him a gun, accused is entitled to an in- that accused, just before the killing, sent his struction on manslaughter. State v. Craw- wife to demand possession, and that when ford, 66 S. E. 110, 115, 66 W. Va. 114.

she did so deceased asked her if she was going If the prisoner willingly engaged in a to take the place of her husband, or if she fight with the deceased, and the deceased was attending to his business, and said that threw his hand to his hip pocket, and ad- there was no law that could put him out, and vanced upon the prisoner in a threatening that then her husband called her, and demanner, and the prisoner, being willing to ceased and his brother followed her, cursing fight, seized a pistol, and shot the deceased, accused and calling him vile names. Held and the deceased died from the wound then not to raise the issue of manslaughter by inflicted by the prisoner, the prisoner would reason of insulting conduct towards her, so be guilty of “manslaughter,” provided the ap- as to require a charge thereon. Gay v. State, pearance and manner of the deceased were 125 S. W. 896, 901, 58 Tex. Cr. R. 472. such as to cause the prisoner to believe that

In a prosecution for homicide, an instructhe deceased was armed with a deadly weap- tion was erroneous which required that, beon, and that the prisoner did believe he was fore defendant would be entitled to a reducarmed with a deadly weapon and was about tion of his offense to manslaughter, the jury to harm him with it. State v. Exum, 50 S. E. must believe both that he was led to commit 283, 289, 138 N. C. 599.

the homicide from learning that decedent had If a convict, while attempting to prevent insulted his wife, and also that the decedent his punishment by the warden, which amount had used violent language to and threatened ed to an assault, slew a fellow convict aiding him with bodily harm, since, where the law the warden, who was the warden's abettor makes any given fact adequate cause for in committing the assault, the homicide may homicide, a defendant is entitled to an unbe reduced to voluntary manslaughter; and equivocal instruction that, if such fact is it was error to omit to charge on that offense proven, it is adequate cause, and where any in a prosecution of the convict for murder. one or more issues are raised by the evidence, Westbrook v. State, 66 S. E. 788, 791, 133 Ga. either of which, if found to be true, would as 578, 26 L. R. A. (N. S.) 591, 18 Ann. Cas. 295. a fact constitute adequate cause, the jury

should be so instructed, and it is error to Where decedent slapped accused, but did blend the two and require that the affirmative not accompany the act by angry or insulting of both be proved. Barbee v. State, 124 S. W. words, a charge on manslaughter that, if ac. 961, 967, 58 Tex. Cr. R. 129. cused killed decedent under the immediate influence of sudden passion arising from the Where a person committing a homicide act of decedent rendering the mind of accus- did so in the belief that decedent had insulted ed incapable of cool reflection, he was guilty defendant's sisters, the homicide was “man. of manslaughter only, properly submitted the slaughter,” if committed upon the first meetissue of manslaughter. Best v. State, 125 s. ing after defendant was apprised of the outW. 909, 913, 58 Tex. Cr. R. 327.

rage, whether decedent actually committed. the insult or not, if the homicide was commit: , wounding, or shooting at or otherwise injurted while defendant was acting under the be- ing another person in any fort, arsenal, etc., lief that decedent was guilty and while labor- of which striking, etc., such person dies. ing under a passion aroused by that belief “ 'Manslaughter' has been defined to be the which rendered his mind incapable of cool re killing of another without malice, express or flection. Gillespie v. State, 109 S. W. 158, implied, which may be voluntary upon sudden 159, 53 Tex. Cr. R. 167.

heat, or involuntary in the commission of If, when he killed decedent, accused was

some lawful act. Any unlawful and willful incapable of cool reflection because of dece- killing of a human being without malice is dent's insulting language and conduct toward manslaughter, and thus defined it includes a accused's wife, knowledge of which had just negligent killing which is also willful. 'Mancome to him, or if the unwarranted ejection slaughter' occupies the middle ground beof accused from decedent's house, accompa-tween excusable, or justifiable, homicide on nied by kicks from decedent, infuriated ac

the one hand, and murder on the other.” cused beyond cool reflection, resulting in the United States v. Hart, 162 Fed. 192, 194, 195. killing, the killing was “manslaughter.” Hol- Gross carelessness in the handling of firecomb v. State, 113 S. W. 754, 756, 54 Tex. Cr. arms which results in killing a human being R. 486.

is at least "manslaughter." State v. Clardy, "If a husband finds his wife committing 53 S. E. 193, 500, 73 S. C. 340. adultery and under the provocation instantly Under Pen. Code, defining “manslaughtakes her life, the homicide is only 'man- ter" as the unlawful killing of a human being slaughter.'" Thomas v. State, 43 South. 371, without malice and dividing it into two kinds: 374, 150 Ala. 31 (citing Hooks' Case, 13 South. (1) Voluntary, upon a sudden quarrel or heat 767, 99 Ala. 166; McNeill v. State, 15 South. of passion; (2) involuntary in the commission 352, 102 Ala. 121, 48 Am. St. Rep. 17; Dabney of an unlawful act not amounting to a felv. State, 21 South. 211, 113 Ala. 38, 59 Am. St. ony, or in the commission of a lawful act Rep. 92; Williams v. State, 30 South. 484, wbich might produce death in an unlawful 130 Ala, 107, 112).

manner or without due caution or circumA arge that to reduce a killing to spection-in a prosecution for assault in the “manslaughter," where passions have been first degree, it was error to instruct that, if suddenly aroused on a sufficient provocation, the jury believed that defendant would have it must have been done under the influence of been guilty of manslaughter in case death passion promptly acted upon, is not errone- had resulted, then they should find him guilty ous. Harrison v. State, 40 South. 568, 570, of assault in the first degree, since intent is 144 Ala. 20.

not always a necessary element in the crime The unlawful killing of another without crime of assault in the first degree. State

of manslaughter, but is the essence of the malice is "manslaughter," as where one kills

v. Schaefer, 88 Pac. 792, 793, 35 Mont. 217. another in a sudden quarrel, in the heat of blood, or in a transport of passion, without “Manslaughter" is the unlawful killing malice, inflicts a mortal wound, without time of a human being without malice, and is of for reflection or for the passions to cool; but two kinds-voluntary (that is, upon a sudden to reduce the offense to manslaughter the quarrel or heat of passion); involuntary, in provocation must be very great, so great as the commission of an unlawful act not to produce such a transport of passion as to amounting to a felony, or in the commission render the person for the time being deaf to of a lawful act, which might produce death, the roice of reason. State v. Brooks (Del.) 84 in an unlawful manner, or without due cauAtl. 225, 228.

tion and circumspection. The instruction was

in the language of Pen. Code, § 192. People Voluntary or involuntary killing v. Lee, 108 Pac. 738, 739, 13 Cal. App. 48. *Manslaughter" is the unlawful killing

"Manslaughter," as defined by Pen. Code, of another, without malice, upon a sudden 8 192, is the unlawful killing of a human beheat, or inadvertently, but in the commission ing without malice, first, voluntary, upon a of some unlawful act. Boche v. State, 122 N. sudden quarrel or heat of passion; second, inW. 72, 75, 84 Neb. 845.

voluntary, in the commission of an unlawful “Manslaughter" is the unlawful killing of act which might produce death in an unlawful another without malice, either express or im- manner or without due care and circumspecplied, and without premeditation, and is ei- tion. The causing of death while attempting ther voluntary or involuntary. State to commit an abortion does not constitute Blackburn (Del.) 75 Atl. 536, 539, 7 Pennewill, manslaughter under the statute. Huntington 479 ; State v. Morahan (Del.) 77 Atl. 488, 489, v. Superior Court of City and County of San 7 Pennewill, 494; State v. Woods (Del.) 77 Francisco, 90 Pac. 141, 144, 5 Cal. App. 288. Atl. 490, 491, 7 Pennewill, 499.

The approved definition of "manslaugh"Manslaughter," as defined by Rev. St. $ ter" as the killing of another without malice, 5341, is the offense of unlawfully and will- either express or implied, “either unlawfully fully, but without malice, striking, stabbing, upon a sudden quarrel, or unintentionally

3 Wos.& P.2D SER.-18


while the slayer is in the unlawful commis- | fendant did “feloniously kill and slay" the sion of some act not amounting to a felony,” deceased cannot support a conviction for asauthorizes an instruction that if defendant sault and battery. The formula did “felostruck the blow that killed the deceased, and niously kill and slay" charges manslaughter intended only to make an assault and battery of either voluntary or involuntary character, upon his person, or to inflict great bodily in- and involuntary manslaughter may be comjury thereon, but that, as a result of the mitted without criminal assault and battery. assault, the deceased died without defendant State v. Thomas, 48 Atl. 1007, 1008, 65 N. J.. having intended to kill him, defendant would Law, 598. be guilty of manslaughter. State v. Walker, 110 N. W. 925, 928, 133 Iowa, 489.

Murder distinguished Where the violation of a penal ordinance

"Murder" and "manslaughter" are disof a municipality causes a death, the death tinguished, in that malice is essential to the is not an unlawful killing within a statute former offense, and by absence of premedita

tion or deliberation in the latter.

Reed v. defining the crime of "manslaughter" and providing that if any person shall unlaw- State, 145 S. W. 206, 208, 102 Ark. 525. fully kill another without malice he shall be The unlawful killing of another with malguilty of “manslaughter." State v. Collings- ice is “murder," as distinguished from “manworth, 92 N. E. 28, 82 Ohio St. 154, 28 slaughter,” which is an unlawful killing withL. R. A. (N. S.) 770, 137 Am. St. Rep. 775. out such malice. State v. Lee, 60 S. E. 524,

525, 79 S. C. 223. “If the killing be in the commission of an unlawful act without malice and without If the slayer provoked the combat or ineans calculated to produce death or the produced the occasion in order to have a preprosecution of a lawful act done without tense for killing his adversary, or doing him due caution or circumspection, it shall be great bodily harm, the killing will be “mur‘manslaughter.'" Ackers v. State, 83 S. w. der," no matter to what extremity he may 909, 73 Ark. 262 (quoting Sand. & H. Dig. & have been reduced in the combat. But if he 1657).

had no felonious intent, intending, for in

stance, an ordinary battery merely, the final Under Ballinger's Ann. Codes & St. $ killing in self-defense would be "manslaugh6840, providing that an information shall ter" only; the distinction being between the contain a statement of the acts constituting right of perfect and the right of imperfect the offense so as to enable a person of com- self-defense. State v. Kelleher, 100 S. W. 470, mon understanding to know what is intend- 475, 201 Mo. 614 (citing State v. Partlow, 4 ed, an information charging that accused, s. w. 14, 90 Mo. 608, 59 Am. Rep. 31). representing himself as a physician, advised a mother employing him to give the child no

" 'Homicide' is murder unless it be atfood except water and the juices of fruit, tended with extenuating circumstances, which, and such other nourishment as he might di- must appear to the satisfaction of the jury, rect, and that acting under such instruction If A. assaults B., giving him a severe blow, the mother withheld all food and nourish- or otherwise making the provocation great, ment, except as directed by accused, and and B. strikes him with a deadly weapon, that the child died as a result of starvation, and death ensues, the law, in deference to does not charge "manslaughter,” defined by human passion, says this is ‘manslaughter.' section 7042, punishing one who shall kill an

If the provocation be slight, and it other without malice in the commission of can be collected from the weapon used or any some unlawful act, because it fails to show other circumstances that the prisoner intenda connected chain of facts showing starva- ed to kill or do great bodily harm, and death tion as the necessary result of the directions. follows, it is ‘murder.'” State v. White, 51 S. State v. McFadden, 93 Pac. 414, 415, 48 E. 44, 48, 138 N. C. 704 (quoting and adopting Wash. 259, 14 L. R. A. (N. S.) 1140.

definition in State v. Smith, 77 N. C. 488). Under Mansf. Dig. § 1532 (Ind. T. Ann.

While, in one sense, murder and manSt. 1899, $ 875), defining “manslaughter” as slaughter are separate crimes, yet, in a broadthe unlawful killing of a human being, with er sense, they involve but one crime and are out malice or deliberation, section 1533, pro- only degrees of felonious homicide. Rhea v. viding that it must be voluntary under a sud- Territory, 105 Pac. 314, 316, 3 Okl. Cr. 230. den heat of passion caused by a provoca- In an instruction correctly defining murtion apparently sufficient to make the passion der and manslaughter, the statement that, irresistible, and section 1534, describing the “You see by these definitions that in murder killing to be manslaughter if it be in the malice must exist, but that manslaughter is commission of an unlawful act without due the killing of a human being without malcaution, there is no such thing as involun- ice," made only to distinguish the two, is not tary manslaughter. Carney v. United States, reversible error. Prince v. United States, 109 104 S. W. 606, 7 Ind. T. 247.

Pac. 241, 242, 3 Okl. Cr. 700. An indictment for manslaughter charg- Manslaughter is distinguished from muring, in the language of the statute, that de der by the absence of malice as a contingent

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element. If, under the influence of some vio- / tion, reflection, or for the passions to cool, lent emotion, a sudden intent was formed, State v. De Paolo (Del.) 84 Atl. 213, 215. which on adequate provocation overwhelmed

"Manslaughter" is an unlawful killing the reason of the appellant, then the killing in anger without malice. Proof of prior provwas not murder, but manslaughter only. ocation may exclude the idea of malice in State v. Clark 77 Pac. 287, 288, 69 Kan. 576. the homicide, but does not exclude the idea

The chief distinction between "murder” of unlawfulness. It merely substitutes the and “manslaughter" is deliberation and mal- element of anger without malice for the eleice in murder and the want thereof in man- ment of malice, thus distinguishing manslaughter, and, where the issue was whether slaughter from murder. Cole v. State, 59 S. accused or a third person inflicted the fatal D. 24, 26, 2. Ga. App. 734. wound, the error in an instruction that if

Murder in the second degree consists of accused killed decedent without authority of the killing of another without a formed delaw and not in necessary self-defense he was sign to take life, and without provocation to guilty of manslaughter, arising from the reduce the offense to "manslaughter,” and omission of the words “without malice and under the influence of a wicked or depraved in the heat of passion," was not prejudicial. heart, or with cruel and wicked indifference Guest v. State, 52 South. 211, 212, 96 Miss. to human life. “Manslaughter is where one 871.

in a sudden affray, in the heat of blood, or Generally it is not “murder,” but “man- in a transport of passion, without malice, inslaughter," to kill an officer, or other person, flicts a mortal wound, without time for reto prevent an illegal arrest. Consequently, flection or for the passions to cool. It is shooting at an officer without killing him, if where one person unlawfully kills another done to prevent an illegal arrest, is prima without malice. In order to reduce the crime facie not an assault with intent to murder, to 'manslaughter,' the provocation must be but the statutory crime of shooting at anoth- very great, so great as to produce such a er, described in Code 1882, 8 4370. Jenkins v. transport of passion as to render the person State, 59 S. E. 435, 436, 3 Ga. App. 146 (quot for the time being deaf to the voice of reaing, with approval, from Thomas v. State, 18 son. While murder proceeds from a wicked S. E. 305, 91 Ga. 206).

and depraved heart and is characterized by

malice, ‘manslaughter' results, not from malUnder Pen. Code, $$ 187, 189, defining ice, but from unpremeditated and unreflectmurder as the unlawful killing of a human ing passion.” State v. Cephus (Del.) 67 Atl. being with malice aforethought, and defining 150, 151, 6 Pennewill, 160. murder in the first and second degrees, and section 192, defining manslaughter as the un

When a killing is intentional and is not lawful killing of a human being without lawful, it is generally "murder”; but, under malice, and dividing manslaughter into vol- circumstances of provocation, or of mutual untary and 'involuntary manslaughter, and combat, it may be reduced to "manslaughter." section 274, making it a felony to perform a

State v. Goldsby, 114 S. W. 500, 503, 215 Mo. criminal abortion, an unlawful killing with 48 (citing 2 Bishop's Crim. Law [6th Ed.] malice aforethought is "murder," and is also $ 695). "manslaughter," because it is the unlawful “Murder" is where a person of sound killing of a human being, though it cannot be memory and discretion unlawfully kills any logically classed as voluntary or involuntary human being under the peace of the state, manslaughter, and under a charge of murder with malice aforethought, either express or by attempting a criminal abortion, a verdict implied. The chief characteristic of this of manslaughter may be returned. People v. crime distinguishing it from “manslaughter" Huntington, 97 Pac. 760, 762, 8 Cal. App. 612. and every other kind of homicide, and there

fore indispensably necessary to be proved, is “Manslaughter" is an unlawful killing,

malice preconceived or aforethought. State which becomes "murder in the second degree"

v. Brinte (Del.) 58 Atl. 258, 262, 4 Pennewhen it has the added element of malice.

will, 551. State v. Fowler, 66 S. E. 567, 151 N. C. 731.

A charge that, where an officer is shot “Manslaughter" consists of the unlawful and killed by one whom he is seeking legally killing of a human being without malice, and to arrest, the offense is “murder” and not so, in a prosecution for assault with intent “manslaughter," was not erroneous when takto commit murder, the accused cannot be en in connection with the evidence which was convicted if, had his victim died, his crime sufficient to show that defendant was violatwould have only been manslaughter. State v. ing the law in the presence of the officer and Stockley (Del.) 82 Atl. 1078, 1080.

that upon an effort to arrest him he drew a "Manslaughter" is a homicide distin- pistol and shot the officer. Johnson v. State, guished from murder in that it is the unlaw- 160 S. E. 160, 161, 130 Ga. 27. ful killing of another with malice, as in sud- If two persons deliberately agree to fight den affray, in the heat of blood, or in a trans- with deadly weapons on a subsequent day at port of passion, without time for delibera-'a definite time and place, and both, being




armed, meet by chance near the appointed , unintentionally kills such person, the crime place and near the appointed time, and with would fall within this definition and constiout any fresh cause of a quarrel or other al- tute “manslaughter in the first degree." tercation one slays the other without justifi- State v. McAnarney, 79 Pac. 137, 139, 70 cation, the crime is murder, and not volun- Kan. 679. tary “manslaughter." Bundrick v. State, 54

Under St. 1893, § 2086 (Wilson's Rev. & S. E. 683, 685, 125 Ga. 753.

Ann. St. 1903, $ 2175), defining homicide to

be “manslaughter in the first degree" when MANSLAUGHTER IN FIRST DEGREE perpetrated without a design to effect death,

Manslaughter in the first degree" is the and in the heat of passion, in a cruel or ununlawful killing of a human being without usual manner, or by means of a dangerous malice; that is, as the unpremeditated result weapon, homicide is “manslaughter in the of passion-heated blood caused by a sudden, first degree" when perpetrated without a sufficient provocation. Thomas v. State, 36 design to effect death and in a heat of pasSouth. 734, 735, 139 Ala. So.

sion, and in a cruel and unusual manner, and

when committed without a design to effect To constitute “nianslaughter in the first death, but in a heat of passion, and by means degree,” there must be either an intent to of a dangerous weapon. Barker v. Territory, kill or to do an act of violence from which 78 P. 81, 83, 15 Okl. 22. ordinarily death or great bodily harm will result. Reynolds v. State, 45 South. 894,

Wilson's Rev. & Ann. St. 1903, § 2175, 895, 154 Ala. 14; Fowler v. Same, 49 South. defines “manslaughter in the first degree” as 788, 789, 790, 161 Ala. 1.

follows: "First, when perpetrated without a

design to effect death by a person while enPenal Code, $ 189, defines “manslaughter gaged in the commission of a misdemeanor. in the first degree” as manslaughter commit- Second, when perpetrated without a design ted without a design to effect death either to effect death, and in a heat of passion, but (1) by a person engaged in committing, or in a cruel and unusual manner, or by means attempting to commit, a misdemeanor, af- of a dangerous weapon, unless it is commitfecting the person or property, either of the ted under such circumstances as constitute person killed, or of another; or (2) in the excusable or justifiable homicide." Under heat of passion, but in a cruel and unusual such definition, the crime of manslaughter manner, or by means of a dangerous weapon. in the first degree could not exist where the People v. Stacy, 104 N. Y. Supp. 615, 619, 119 crime was committed by lying in wait and App. Div. 743; Same v. Iluson, 79 N. E. 835, shooting deceased, and the shooting was 187 N. Y. 97; Same v. Darragh, 126 N. Y. willful and deliberate, resulting in death, Supp. 522, 525, 141 App. Div. 408.

and the only defense was that of alibi. The Rev. St. 1899, $ 1822 (Ann. St. 1906, p. language of the second subdivision of the 1266), providing that one deliberately assist- statute, defining “manslaughter in the first ing another in the commission of self-mur- degree” perpetrated without a design to efder shall be guilty of manslaughter in the fect 'death, would not authorize an instrucfirst degree, changed the common-law rule tion submitting defendant's guilt of manthat if one counsels another to commit sui- slaughter in such degree on such facts. Reg. cide, and such other by reason of the advice nier v. Territory, 82 Pac, 509, 15 Okl. 652. kills himself, the adviser is guilty of mur- Rev. St. $ 2276, defines "manslaughter in der as an aider and abetter, provided he is the first degree” as where a homicide is perpresent when his advice is carried out. State

petrated without design to effect death by v. Webb, 115 S. W. 998, 1000, 216 Mo. 378, 20 a person while engaged in the commission of L. R. A. (N. S.) 1142, 129 Am. St. Rep. 518, a misdemea wor, and in the heat of passion, 16 Ann. Cas. 518.

but in a cruel or unusual manner, or by “Manslaughter in the first degree,” under means of a dangerous weapon, or perpetrated Crimes Acts, $ 12 (Gen. St. 1901, § 1997, is unnecessarily either while resisting an atdefined as the killing of a human being with tempt by the person killed to commit a crime out a design to effect death, by the act, pro- or after such attempt shall have failed. Turcurement, or culpable negligence of another, ner v. State, 126 Pac. 452, 458, 8 Okl. Cr. 11; while such other is engaged in the perpetra- Kent v. Same, 126 Pac. 1040, 1042, 8 Okl. Cr. tion or attempt to perpetrate any crime or 188. misdemeanor, not amounting to a felony, in Pen, Code, $ 2, declares that no act or cases when such killing would be murder at omission shall be deemed criminal or punishthe common law. It has been held that the able save as prescribed by the Code, by some act or offense which the accused commits or statute which it continued, or by such laws attempts to commit at the time of an unin- as are not in conflict with the Code, and sectentional killing includes an assault and bat- tion 241 defines manslaughter in the first detery, and that intentional violence to the per- gree as a killing perpetrated without a design son is not excluded. If one, without any de- to effect death and in a heat of passion, but sign to effect death, assaults another with in a cruel and unusual manner or by means an intent only to commit assault and battery of a dangerous weapon, unless committed upon him, and with the use of a tin can be under such circumstances as to constitute ex

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