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found indicated that it might have been done. | full consideration of some of the other exThat is as far as I can go." C. Q. 137. "Indi- ceptions will be of service for guidance in a cations only show Answer: "That it future trial of the case. could have been done."

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There was no testimony showing such a disarrangement of the dead boy's clothes, as for example that the top of the trousers were below the hips, as to give added weight to this suggestion of Dr. Griffin. It therefore derives its whole significance from the dilated condition of the anus. Upon this slender foundation is erected a structure of testimony, which includes the narrative as to the defendant's physical examination, the description of his physical appearance and development, and the four photo-case, as appears on page 452 of the trangraphs all adduced in order to show to the sion on the point of its admissibility, but no script. There was then a prolonged discusjury his physical capacity to commit a crime, ruling by the court is shown. As, however, the actual commission of which is only sug- the exception on page 75 is allowed and the gested as a mere possibility. We think the box is marked "State's Exhibit 3," it is to be testimony was not sufficiently relevant to the issues in the case. Sodomy is a crime treated as having been duly admitted in against nature, and as such is a disgusting evidence. The objections to its admissibiland repulsive offense. So that, if the person the defendant as to the nature and extent ity are: First, that no dispute was made by of the wounds on the skull of William Mather; and, second, that such evidence only tended to prejudice the jury against the defendant. Inspection shows the exhibit to contain the crown or upper and back portion of the skull with some fragments of bones. Demonstrative evidence of this character is relevant and admissible when it serves either to show the commission of a crime or throws

to the admission in evidence of a certain box
[4, 5] The fourteenth exception was taken.
and its contents, which said box was marked
"State's Exhibit 3." It is somewhat diffi-
cult to determine from the record whether
the box was so admitted or not. This ex-
ception is noted on page 75 of the transcript,
but there is no express ruling of the court
to that effect. The uncertainty on this point
appears to have been such that the state
offered it in evidence near the close of its

who killed William Mather did it in the en

deavor to commit the crime of sodomy, or if the killing was the result, accidental or otherwise, of a personal quarrel, and then, perhaps under a sudden impulse, while the stricken body of the victim was yet warmwhether before or after his death-the slayer availed himself of the opportunity to gratify his lustful passion, for this vile act he would naturally be regarded by most men as a foul degenerate and a wicked and criminal pervert. We think therefore that all of this evidence relative to the defendant's ability to commit the crime of sodomy could not have failed to prejudice his case with the jury. State v. Ellwood, 17 R. I. 763, 769, 24 Atl. 782. It should have been excluded. The fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, sixteenth, and twenty-second exceptions are sus

tained.

With the sustaining of these exceptions the fifteenth exception becomes unimportant,

and it is overruled.

Defendant, under exception 22, also urges that the taking of the photographs and their admission in evidence was in effect compelling the defendant to testify against himself in derogation of his constitutional rights in this particular, making specific reference to certain sections of the federal Constitution. In view of the fact that we have found that this evidence should have been excluded, it is not necessary to consider this claim of constitutional privilege beyond calling attention to the case of Twining v. New Jersey, 211 U. S. 78, 29 Sup. Ct. 14, 53 L. Ed. 97. A part of the syllabus is:

"Exemption from compulsory self-incrimination in the state courts is not secured by any part of the federal Constitution," and this is upheld by the text of the opinion.

Although a new trial is to be granted for the reason stated, nevertheless a somewhat

light on the way it was committed. On the
other hand, if it explains no fact and is rele-
vant to no disputed issue, then it is excluded
on account of its tendency to create preju-
dice. See Wharton, Crim. Ev. vol. 2, §§ 518,
518c, 941; 2 Wigmore on Evidence, § 1157;
Cole v. State, 45 Tex. Cr. R. 225, 232, 75 S.
W. 527. In this case the manner of the kill-
ing was a matter of inference.
tured bones served to demonstrate the de-
structive force and effect of the blows inflict-

The frac

ed better than a technical verbal description and gave the jury opportunity as practical men to judge for themselves whether the injuries were likely to follow from a stone or similar weapon as described by the medical witnesses. The mere fact that the defendant announced that he would deny all knowledge of the death of Mather, and therefore would not dispute any of the evidence as to the homicide itself, simply left upon the state the burden of properly proving its case and did not bar it from offering any demonstrative evidence which might tend to throw light not only on the fact but on the mode of killing. The necessity of its admission is perhaps a debatable question; but, taking into consideration the character and appearance of the exhibit itself, we do not, under the circumstances of this case, think it was clearly an error to admit the box and contents in evidence. Exception 14 is overruled.

[6] The seventeenth exception to the tes

timony of Ricci Petrochelli, in answer to | down on the box. I said, 'You don't know who question 129 in redirect examination, is not of importance. In the cross-examination of this witness, in question 114, defendant's counsel had asked him who it was that told the witness "to say that you did not want to take the watch that Mariano wanted to give you because it was William Mather's watch." The answer to question 129 and the questions immediately preceding show that it was the sister of the witness who so told him. The exception is overruled.

[7] Exception 20, to the overruling of defendant's objection to question 154 by the last witness, is overruled, as the answers of this witness to this and the following question could not have prejudiced the defend

ant.

The twenty-third exception is taken to the overruling of defendant's objection to question 48 in the direct examination of Sanford E. Kinnęcom, as follows: "And what was the commencement of your conversation with him?" This refers specifically to the admission in evidence of the conversation the defendant had with Mr. Kinnecom in the cell room of the town hall on the evening of March 30, 1912; but it goes also to the admission of his statements during the night in the presence of Mr. Kinnecom. The objection to the admission of this evidence was on the ground that these statements were not voluntary.

In the examination of Mr. Kinnecom before the court in the absence of the jury for the purpose of determining the admissibility of his evidence, he said that on the evening of March 30, 1912, he chanced to be in the vicinity of the town hall of North Providence and went in there and saw Mr. Willis, who informed him that he had a boy in custody who "gets right on the verge of telling us something and then stops. I wish you would talk with him." Thereupon Mr. Kinnecom went

downstairs with Officer Brown. He found

there Antonio Capuano, an Italian police officer, who was talking in Italian to the defendant through the door of his cell. Mr. Kinnecom did not understand it, and what this conversation was was not at that time in evidence. Capuano finally wound up in English, saying to Mariano:

"If you did it, say so, and I will do all I can for you. If you did not do it, don't say you did. I've got four kids myself."

The reply of the boy was, "I didn't kill him, so I can't say I did." Capuano then went out of the station. Mr. Kinnecom testifies that then:

"I walked up to the cell door and said, 'Well, little fellow, what have they got you in here for? He made no reply. Officer Brown was going toward the door to go out, and I said, Here, have you got a key to this cell?' He said, 'Yes.' I said, 'Come back and let this boy out.' He came back and let the boy out, and I looked around and found a box and a chair, and I took the box and set it down side. of the furnace and set the chair in front of it and said, 'Little fellow, sit down here.' He sat

I am, do you?' 'No, Ma'am.' 'Well,' I said, 'I city. You know where that is?" am an officer, I work in the courthouse in the He says, 'Providence?' I says, 'Yes.' 'Now,' I says, 'I am going to ask you about the Mather boy. Whatever you tell me will be used either for you or against you. Now remember, Tony, whatever you tell me, it may tell for you or it may tell against you. Be sure and understand it, it may hurt you, or it may help you; but whatever you tell me, I want you to tell the truth.' The boy said, "Honest to God, Mister, I didn't kill him," but afterwards told the stories and made the statements hereinbefore repeated.

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Mr. Kinnecom also states

that the boy did not appear to be frightened during the talk, but was cool and calm. He seemed to be somewhat worried about something, but after making his statement acted as if relieved of a burden.

[8, 9] The statements made to Mr. Kinnecom by the defendant were not in strictness a "confession."

"A confession is a person's declaration of his agency or participation in a crime. The term is restricted to acknowledgments of guilt." People v. Ammerman, 118 Cal. 23, 32, 50 Pac. 15, 18.

See, also, Greenleaf on Evidence, § 170; 6 Am. & Eng. Encyc. of Law, 521; 12 Cyc. 459.

These statements by the defendant were of an explanatory and exculpatory character, admitting that he caused Mather's death by accident, but denying criminal intent or liability. Statements and declarations by an accused person, although not amounting to a confession, but from which in connection with other evidence and the surrounding circumstances an inference of guilt may be drawn, are admissible against him as admissions. 12 Cyc. 418.

The state claims that it is not necessary to

show that these statements were voluntarily

made. One of the best modern writers on

evidence holds that exculpatory statements denying guilt cannot be treated as confessions, and that in order to admit them in evi

dence it is not necessary to show them to be voluntary in character. 1 Wigmore on Evidence, § 821(2 and 3), and cases cited in notes. In the author's discussion of the subject this view is impressively stated. In practice, however, there is a great lack of uniformity in the decisions on the point; but in the greater number of jurisdictions it is held that the voluntary character of such admissions must be shown. 12 Cyc. 419. In State v. Nagle, 25 R. I. 105; 54 Atl. 1063, 105 Am. St. Rep. 864, this court treated similar statements or admissions having “a vital bearing upon a highly important link in the chain of circumstantial evidence relied on by the prosecution" as in the nature of confessions and subject to the same rules of admissibility in evidence; that is, that they must be voluntary. From this standpoint we will consider this and the next two exceptions.

[10] The defendant makes little real objection to the preliminary conversation and admonition given by Mr. Kinnecom. The

words "but whatever you tell me, I want you | lege of cross-examining them. No ruling was to tell the truth," do not constitute an inducement rendering the statements thereupon made involuntary and inadmissible. 2 Whart. Crim. Ev. § 654. This court, in State v. Nagle, supra, said:

"We do not wish to be understood in what we have thus said, however, as deciding that a mere request, advice, or admonition to tell the truth will render a confession induced thereby inadmissible in evidence, for the strong current of authorities, as well as the better reason, is to the contrary. Am. & Eng. Encyc. L. (2d Ed.) vol. 6, p. 531, and cases cited; State v. Habib, 18 R. I. 558 [30 Atl. 462]."

The remarks of Mr. Kinnecom to the defendant did not render the defendant's statements made to him inadmissible under this rule.

requested and none made. The counsel did
not himself offer to call the persons named
or any others for examination. These wit-
nesses were all afterwards called by the state
in the progress of the trial, and they were
cross-examined. There is obviously nothing
in this occurrence to lead to the exclusion of
the testimony of defendant's statements.
State v. Jacques, 30 R. I. 578, 585, 76 Atl.
652. The twenty-third exception is
ruled.

[13] The twenty-fifth exception is to the admission in evidence of defendant's state

ment to Judge Reuckert when arraigned. It
is not necessary to consider this at length.
"Where the accused is taken before a mag-
istrate,
* unless otherwise provided by
statute, and whether cautioned or not, his con-
fession is admissible in evidence against him
about by some inducement that renders the
unless *** such confession was brought
confession untrustworthy or has induced a false
confession." 2 Whart. Crim. Ev. p. 1279.

[11, 12] Was the statement in English of Capuano to the defendant an inducement to make a false confession? If he had simply said, "If you did it, say so, and I will do all I can for you," the promise of assistance might raise a question as to the following There is no suggestion of the happening of statements being voluntary; but the added anything at the time of arraignment to renwords, "If you didn't do it, don't say you der defendant's statement inadmissible. did," naturally refute any suggestion in the Wolfe v. Commonwealth, 30 Grat. (Va.) 833, preceding words of a recommendation to 840; State v. Washing, 36 Wash. 485, 78 Pac. confess. The effect of similar expressions 1019. The previous consideration of the obhas been passed on by other courts. In Dot-jection to the admission of the defendant's son v. State, 88 Ala. 208, 7 South. 259, an officer told a prisoner he would help him all he could, adding:

"If you did do it, it might be best for you to say so; but, if you did not, stick to it that you did not."

In Rafe v. State, 20 Ga. 62, 68, a sheriff told a prisoner if he did do it he had better acknowledge it; but, if he did not do it, not to acknowledge it. In State v. Kirby, 1 Strob. (S. C.) 155, the prisoner was told that if he was really guilty and confessed who were the right persons he might be pardoned, but was admonished not to confess if he was innocent. In none of these cases were the statements quoted held to make the confession which followed involuntary.

statements to Mr. Kinnecom the night of his arrest made on similar grounds renders it unnecessary to say more as to this particular exception, which is overruled.

The twenty-third exception relates to the testimony of Mr. Kinnecom only, and the to the testimony of of Judge twenty-fifth to Reuckert.

The twenty-eighth exception was taken to the refusal of the court to strike from the record all the testimony of all the witnesses for the state in so far as such testimony purported to give statements of the defendant of the nature of confessions or admissions on the same ground, namely, that these alleged confessions or admissions were not voluntary. This exception covers not only the testimony of Judge Reuckert and Mr. Kinnecom, but also that of Inspectors Ahearn and

"Mere advice to confess if guilty, and, if not, to stand firm, does not render the confession involuntary." 2 Whart. Crim. Ev. § 654. See, also, cases in note 3 to section 832, 1 Wolf, and large portions of the testimony Wigmore on Evidence.

The answer of the defendant to Mr. Capuano, "I didn't kill him, so I can't say I did," shows no indication of his being influenced to confess by what Capuano had said to him. We think there is nothing in these statements to the defendant to make his subsequent statements to Mr. Kinnecom involuntary. In the discussion before the court as to the admissibility of the testimony of Mr. Kinnecom as to his conversation with the defendant, the defendant's counsel expressed a desire to have the state then call Chief of Police Willis, Domenico Conca, and Antonio Capuano for examination as to what was done and said to the defendant the evening of March 30th before Mr. Kinnecom arrived in order that he might have the privi

of Chief of Police Willis and of Domenico Conca, although to this testimony, apart from that of Mr. Kinnecom and that of Judge Reuckert, no objection was made when it was offered. The motion to strike out was made after practically all of the evidence in the case was in. The additional testimony pertinent to this exception relates to the happenings to the defendant, after his arrest and before the arrival of Mr. Kinnecom at the town hall, including in such happenings what was said to him or in his hearing by other persons, his surroundings when locked in the cell, and how these conditions affected or influenced him. The undisputed testimony shows: That he was questioned somewhat about Mather's watch while being taken to the town hall. Questioned more at

[16] Exception 31 was taken to certain remarks of the court made while discussion was in progress as to a question calling for testimony concerning "the character or reputation of the defendant." While, of course, it is always incumbent upon a court, and most of all in the heat of a trial when it may be annoyed by the persistence of zealous counsel in the face of its rulings already made, to avoid any utterance which would prejudice a defendant with the jury, the words objected to in this case are not such as to require comment, inasmuch as the defendant obtains a new trial on other grounds, and as there is small probability of the precise situation occurring again. The exception is overruled.

length as to the whole affair after his ar- 150 N. E. 1035; 7 Am. & Eng. Encyc. of Law, rival there before being taken downstairs to 863, 864. the cell. That on being taken down he said, "Going to leave me here?" On being told, "Yes," he said, "Take me upstairs, I will tell you all about it." That on being taken upstairs he said, "I don't know anything about it." Whereupon, after a brief questioning, he was locked in the cell. That he said several times in the course of these interviews that, if he could go home, he would tell all about it. That he cried at times, the testimony being conflicting as to extent of this and as to whether the cellroom was lighted while he was in the cell. Defendant himself tells of occurrences and remarks, which, if true, might tend to frighten him, and of his being persuaded by promises of assistance from some of the state's witnesses to make the statements he did relative to the manner of Mather's death. Upon these points the testimony was conflicting.

[17] The thirty-third exception was taken to the refusal of the court to charge the jury as follows:

"The state having produced no evidence that the defendant possessed the discretion to judge between right and wrong, and the evidence being clear that the defendant was dull and backward under the age of 14, you are hereby directed to bring in a verdict of not guilty."

The defendant lacked three months of be

[14] Upon consideration of all the testimony then in, pertinent to the question raised, the justice presiding was apparently of the opinion that on the facts found by him to exist the statements of the defendant testified to were of a voluntary character. Upon the evidence relative to this question, as to which there was no dispute, we find that the testimony objected to was properly admissible. If, and in so far, as he considered the conflicting testimony in the formation of his opinion, we find no sufficient reason for differing with his conclusion. He had the opportunity of seeing and hearing the witness-doubtedly a backward boy, but he said in es, as we have not. Relative to the question of a confession being voluntary or not as affected by a conflict of testimony, in Com. v. Preece, 140 Mass. 276, 5 N. E. 494, the court

says:

"When there is conflicting testimony, the humane practice in this commonwealth is for the judge, if he decides that it is admissible, to instruct the jury that they may consider all the evidence, and that they should exclude the confession, if, upon the whole evidence in the case, they are satisfied that it was not the voluntary act of the defendant.”

See, also, Com. v. Cuffee, 108 Mass. 285; Com. v. Bond, 170 Mass. 41, 48 N. E. 756; Burton v. State, 107 Ala. 108, 18 South. 284; Stallings v. Johnson, 27 Ga. 572, 581, 583. The record shows that the court instructed the jury in this manner, and that no exception was taken thereto. There was no error in denying the motion to strike out, and the twenty-eighth exception is overruled.

[15] The twenty-ninth and thirty-second exceptions were taken to the denial of separate motions for the direction of a verdict in favor of the defendant. In our opinion the court's action on these motions was correct. We think a suitable case had been presented for determination by jury, and that the evidence, if believed to be true, might properly leave no doubt of the defendant's guilt. These exceptions are overruled. See Com. v. Williams, 171 Mass. 461,

ing 14 years of age when the crime was committed. At 14 the presumption of criminal incapacity would cease. Obviously with a boy of average intelligence at his age on February 29th slight evidence might rebut that presumption. The defendant was un

his cross-examination that he knew it was wrong to kill another boy. We think that the evidence in this case was sufficient to make the question of his capability to commit crime one for the jury. State v. McDonald, 14 R. I. 270. See, also, State v. Learnard, 41 Vt. 585, 589; State v. Guild, 10 N. J. Law, 163, 18 Am. Dec. 404, 416. This exception is overruled.

Exception 34 lies to the additional instructions given to the jury in response to their request after they had been out a considerable time. We have carefully read and considered these instructions. Some members of the jury seemed confused as to how they should treat the so-called confessions. Several specific questions were asked the court by different jurors. The additional instructions were given in reply. We are not prepared to say that these instructions were obnoxious to the charge of an unfair reference to and use of the testimony. They were not a complete charge in themselves, but were obviously intended to be considered together with the original instructions. This exception is overruled.

The fifth, sixth, seventh, eighth. ninth, tenth; eleventh, twelfth, thirteenth, fourteenth, sixteenth, and twenty-second exceptions are sustained. All the others are overruled and the case is remitted to the superior court for a new trial.

(37 R. I. 107)

the superior court, from which the case was BULLARD et al. v. REDWOOD LIBRARY certified under Gen. Laws 1909, c. 298, § 10,

et al. (No. 4747.)

(Supreme Court of Rhode Island. July 10,

1914.)

1. TAXATION (§ 891*) INHERITANCE TAX PERSONS LIABLE INTENTION OF TESTATOR. In the construction of a will giving legacies of personal property situated in and subject to the inheritance tax laws of another state the question whether such tax shall be charged against the legacies given or not is one of the testator's intent, in view of all the circumstances.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1712; Dec. Dig. § 891.*]

2. PROPERTY (§ 6*)-SITUS OF PERSONAL PROP

ERTY.

Personal property has no locality, but is sold, transmitted, bequeathed by will, and descendible by inheritance according to the law of the owner's domicile, and not according to the law of the situs.

upon an agreed statement of facts. Papers in the cause, with decision certified thereon, remitted with direction to enter a decree dis missing the appeal and affirming the decree of the probate court.

William MacLeod, of Newport, for appellants Sheffield & Harvey, of Newport, fo appellees.

JOHNSON, C. J. This is an appeal from a decree of the probate court of the town of Middletown to the superior court of Newport county, certified to this court upon an agreed statement of facts.

The appellants are the executors of the will of Mary E. W. Perry, a domiciled resident of Middletown in this state, who died

The agreed statement of facts is as follows:

"The parties hereto, having adversary interests in the construction of the will of Mary E. W. Perry in the within cause, concur in stating a special case for the opinion of the Supreme Court upon the following agreed statement of facts:

[Ed. Note. For other cases, see Property, December 10, 1910, and, the will having been Cent. Dig. § 3; Dec. Dig. § 6.*] duly proved, are qualified to act as such by 3. WILLS (8 436*)-PROBATE-PRESUMPTIONS. the decree of the probate court of MiddleA testator, domiciled in the state of Rhode town. Island, is presumed to have made his will in accordance with the existing laws of such state. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 947-950; Dec. Dig. § 436.*] 4. TAXATION (§ 889*) - INHERITANCE TAX PERSONS LIABLE-EXECUTORS OR LEGATEES. Testatrix died domiciled in this state, and her will was probated and her executors appointed by a probate court of this state. She left personal property in Massachusetts, to get possession of which her executors were obliged to take out ancillary letters testamentary in Massachusetts and to pay inheritance taxes assessed against certain legacies. Held, that as the taxes were merely a charge on the particular property because of the jurisdiction of Massachusetts over it by reason of its situs therein, and not on the legacies given by the will, and as such foreign tax law could not regulate the exercise of testamentary power by a domiciled resident of this state, the amount of the tax was not a charge against the pecuniary legacies, but a part of the expenses of administration chargeable against the general estate. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 1710; Dec. Dig. § 889.*] 5. EXECUTORS AND ADMINISTRATORS (§ 84*)COLLECTION OF ASSETS.

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[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 323; Dec. Dig. $ 84.*]

6. WILLS (8 587*)-"RESIDUE"-EXTENT.
A gift of a "residue" is subject to the
precedent claims upon the estate; it is a gift
of what remains after the debts and legacies
are paid.

[Ed. Note.-For other cases, see Wills, Cent.
Dig. §§ 1279, 1281-1291; Dec. Dig. § 587.*
For other definitions, see Words and Phras-
es, vol. 7, pp. 6169-6171; vol. 8, p. 7789.]
Case Certified from Superior Court, New-
port County.

"(1) That Mary E. W. Perry, late of the town of Middletown, deceased, died on the 10th day of December, A. D. 1910, leaving a last will and testament duly admitted to probate by the probate court of said town of Middletown (a copy of which said will is hereto attached and marked 'Exhibit A').

"(2) That in and by said will testatrix left
certain legacies as follows:
Redwood Library, Newport, books,
clock, and...

St. Mary's Church, So. Portsmouth,
share in Redwood Library, and.
St. Mary's Church, rector's fund.
Trinity Church, Newport, rector's

fund, and sundry articles of furniture
Bowdoin College, Brunswick, Me.....
Home for Aged Women, Bangor, Me...
Maine General Hospital,

Eastern

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Bangor
First Congregational Church, Grove-
land, Mass., seven-tenths of Perry
Mansion property, to be used as a
Town of Groyeland, land for public park.
parsonage, and...
Mary Bamfield Davies.
Mary Wilkinson Richardson.
Helen Robinson Woodbury.
Lisa Carroll..
Alice Bullard Ide.
Eleanor May Barker.
Mary Adams Willard.
Edward F. Fitzgerald, gardner.
Marie Bernier...
George E. Bullard.
Louis Curtis..
Clark Burdick.
August Carlson..
Jeremiah Lawton..

$121,200.

$50,000

2,000

1,000

5,000

10,000

5,000

4,000

3,000

1,000

1,000

1,000

1,000

1,000

2,000

2,000

1,100

500

10,000

10,000

10,000

500

100

Proceeding by George E. Bullard and others, executors of the will of Mary E. W.-the pecuniary legacies in all amounting to Perry, deceased, against Redwood Library and others, for construction of the will. From a decree of the probate court in favor of defendants, Bullard and others appeal to

"(3) That the estate of said Mary E. W. Perry was invested in stocks, bonds, notes, and other property amounting to $2,315,964.48, of which $17,330.32 was within the state of Rhode Is

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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