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401 Phil. 886


[ G.R. No. 131924, December 26, 2000 ]




CARLITO CORTEZ and GERRY ESPAÑA along with two (2) John Does were charged before the Regional Trial Court of Cagayan de Oro City[1] with the murder of Dominador Bislig. Both Cortez and España were found guilty as charged and sentenced to life imprisonment.[2] They were also ordered to pay the heirs of the deceased the sum of P50,000.00 for indemnity and actual damages and P100,000.00 for moral damages.

At ten o' clock in the evening of 20 August 1992 at Zone 9 Macanhan, Carmen, Cagayan de Oro City, M/Sgt Estefanio C. Anobling was in his yard. From there he saw Carlito Cortez playing billiards with an unidentified person. A meter away stood Gerry España and another unidentified person. They were about six (6) meters away from Anobling. Carlito, Jerry and the two (2) John Does appeared to be exchanging glances and signals that Anobling decided to place them under surveillance. About forty-five (45) minutes later, Dominador Bislig and his nephew Ismael Ledesma arrived at the neighboring store. Ledesma ordered beer. Upon seeing Bislig and Ledesma, the four (4) accused went inside the house of Vicky, a neighbor of Anobling, and further observed Bislig and Ledesma from there some five (5) meters away. According to Anobling, the accused "waiv(ed) their hands pointing to Bislig and his nephew."[3] Cortez then approached the two (2) and conversed with them. While they talked Gerry España would join them now and then.

Apprehensive, Anobling went to the store to make sure that no untoward incident would happen. As he approached Ledesma and Bislig, the latter offered Anobling a softdrink. Anobling accepted the offer. As it was already past midnight, Anobling asked them to leave before they disturb the neighborhood, and Bislig promised to do so after finishing his beer. With that promise, Anobling returned home. Shortly after, he overheard one (1) of the four (4) accused ask Ismael Ledesma where he was going, to which Ledesma replied that he was accompanying Dominador Bislig home. Anobling again rushed out of his house, taking the street parallel to where the accused were. He saw accused Carlito Cortez and Gerry España four (4) meters away holding Bislig by his coat. Then Cortez stabbed Bislig with a knife while one of the "John Does" held a jungle bolo. Upon seeing Anobling, one of the assailants shouted, "Si Master, si Master!" and the four (4) fled. Anobling chased them and apprehended the man wielding the bolo and disarmed him although he was able to escape later. Anobling returned to Bislig and helped him into a motorcab that took him to the hospital.

Meanwhile, the people milling around the crime scene told Anobling that the culprits were still holding out in the house of Gilbert Cortez, Carlito's brother. Anobling proceeded to that house with Barangay Kagawad Lando Coro and apprehended Carlito Cortez who was pretending to be asleep, and Gerry España who was standing in the yard.

On 21 August 1992 Assistant City Prosecutor Romualdo E. Galarrita filed an Information alleging among others that at about midnight of 21 August 1992 at Zone 9, Macanhan, Carmen, Cagayan de Oro City, the accused Carlito Cortez, Gerry Espana and two (2) John Does conspiring and mutually helping one another, with intent to kill, evident premeditation and treachery, and taking advantage of superior strength, armed with a bladed weapon did then and there willfully and feloniously attack, strike and stab Dominador Bislig with the weapon thus inflicting upon him mortal wounds which were the direct and immediate cause of his death, contrary to Art. 248 in relation to Art. 14 of The Revised Penal Code.

Dr. Apolinar Vacalares who autopsied the body of Dominador Bislig testified that the victim sustained two (2) stab wounds, one (1) located at the front anterior chest measuring 5.5 cm. in length, and the other, at the backside below the right scapula, 3 cms. long. Cause of death was "massive hemopneumothorax due to stab wound," meaning that the stabbing caused a puncture in the lung that filled the thoracic cavity with blood. The doctor also testified that the front wound was caused by "a sharp, with three edges, rectangular knife,"[4] while the back wound was caused by a knife "with three edges and were rounded."[5] He also opined that based on the nature and shape of the wounds it was possible that they were caused by two (2) different weapons.

Accused-appellant Carlito Cortez testified in his defense. He claimed that on the night of the incident he was asleep in the house of his brother Gilbert Cortez in Macanhan, Carmen, where he also lived. It was only some fifty (50) meters away from the crime scene. According to him, he spent the whole day taking care of his brother's child and was only awakened by noise at midnight.

Gerry España, for his part, stated that he arrived at the house of Gilbert Cortez at eleven o'clock in that evening to fetch Carlito because they were going to do routine surveillance in a nearby barangay as barangay tanods.

Gilbert Cortez testified that on the night of the incident he arrived home from work at about eight o'clock in the evening. He had supper with his wife and children together with his brother Carlito Cortez, after which they all went to sleep. At about eleven o'clock, Gerry España arrived to fetch Carlito. He (Gilbert) was about to wake Carlito up when Anobling and a certain Kagawad Lando Coro arrived to arrest Carlito and Gerry. In fact a minor altercation ensued but the two (2) were prevailed upon to go to the police station and they did quietly.

In their four-page brief, accused-appellants argue that the trial court erred "in giving credence to the testimony of the prosecution's alleged lone eye-witness, M/Sgt Estefanio Anobling, who was merely attempting to make himself look important, like claiming to have been orally designated by Mayor Pablo P. Magtajas, to take care of the peace and order of Barangay Macanhan, Cagayan de Oro City."

The trial court pointed out that prosecution witness, M/Sgt Anobling, testified in a "straight forward, categorical, spontaneous and frank manner and has remained consistent." It was convinced that Anobling was a credible witness. Factual findings of trial courts, particularly the assessment of the credibility of witnesses, are accorded weight and highest respect on appeal. This is so since trial courts have the opportunity to observe firsthand the demeanor and conduct of witnesses and to examine other proofs as well, and thus are better situated to form accurate impressions and conclusions.[6] Anobling revealed all the details of the assault, from the time before the aggression even started, to the identity and clothes of the assailants and, finally, the pursuit and capture of the two (2) accused-appellants. Such vivid narration leads this Court to lend much credence to his testimony. It is very unlikely that a witness could have related all the details of a crime with such clarity and lucidity unless he himself was present at the time the killing transpired.[7]

Accused-appellants invoke alibi. But the positive identification of the accused, where categorical and consistent and without any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over alibi and denial.[8] Furthermore, for the defense of alibi to prosper, it must be established by positive, clear and satisfactory proof that (a) the accused was somewhere else when the offense was committed, and (b) it was physically impossible for the accused to have been present at the scene of the crime or its immediate vicinity at the time of its commission.[9] If there was even a chance for the accused to be present at the crime scene, the alibi will not hold.[10] Carlito Cortez testified that he was in his brother's house sleeping at the time the incident occurred. Gerry España testified that he arrived at the house at eleven o'clock in the evening. However, the house is only fifty (50) meters away from the crime scene. Hence, the defense of alibi is unavailing, since the presence of both men in that house did not necessarily preclude their presence at the locus criminis. It becomes even less plausible as a defense when it is mainly established by accused-appellants themselves and their immediate relatives.[11]

The defense attempted to corroborate the testimony of the two (2) accused-appellants by presenting Gilbert Cortez. While ordinarily relationship per se does not affect the credibility of a witness, in this case the Court believes that Gilbert Cortez was highly biased in favor of his brother. Indeed, blood relatives tend to be naturally protective of each other and are not above giving false testimonies in favor of one another, especially a relative in danger of being convicted. Hence, Gilbert's testimony, although prompted by understandable reasons, is entitled to very little weight and cannot prevail over the positive, unbiased testimony of Anobling.

Accused-appellants endeavor to assail the credibility of prosecution witness Anobling. In their brief, they stated that "[i]n counsel's own assessment of M/Sgt Estefanio C. Anobling, he is nothing but a braggart. He is used to blowing his own horn or patting his own back as no one else did." They even went as far as to state that the witness "exudes the appearance of a multiple familied ignoramus." Such argumentum ad hominem only serves to emphasize the lack of merit of the cause of the defense. However, even if defense counsel is partially correct, this is merely his own assessment and is not supported by any evidence on record. In fact, all defense witnesses including the two (2) accused-appellants admitted that Anobling did not bear any grudge against them, nor was there any bad blood between them. When there is no evidence to show any dubious reason or improper motive why a prosecution witness would falsely testify against an accused or implicate him in a heinous crime, his testimony is worthy of full faith and credit.[12]

Accused-appellants likewise point out the following inconsistencies in the testimony of Anobling: (a) If indeed he ran parallel to the road taken by the assailants, he would not have caught up with them and would not have recognized them because it was dark; (b) The assailant he caught could not have escaped since according to him he was a black belt in karate; (c) He was lying when he said he knew Carlito Cortez before the incident because he mistakenly called him "Sander," which is actually the nickname of Carlito's brother Alexander; and, (d) If Carlito was pretending to be asleep in the room in the second floor of his brother's house, then Gerry España should have also been with him pretending to sleep and not out in the yard. They also raise the argument that the bolo that Anobling recovered from the unidentified assailant could not have been the weapon that caused the fatal wound.

We do not see how it would be impossible for Anobling to catch the unknown assailant if Anobling had taken the street parallel to the one taken by the malefactors. Anobling testified that he was merely four (4) meters away from the assailants when the stabbing took place and that he was a "runner."[13] Given the a short distance, it was possible for a physically fit pursuer to overtake a slower quarry. Strangely enough, accused-appellants answered their own query in their reply brief when they said, "Macanhan's peripheral area is actually underdeveloped so that the houses are not fenced which explains the reason why M/Sgt Estefanio Anobling was able to run parallel to the route taken allegedly by the assailants of Dominador Bislig."

Likewise untenable is the assertion that it was impossible to identify the assailants because it was dark. Anobling testified that he was able to see the faces of accused-appellants clearly as the place was well lighted[14] and he was only four (4) meters away when the incident occurred. Furthermore, he identified one of the attackers as wearing a yellow jacket. It is easy to spot a yellow jacket and follow the person wearing it even in the dark.

The arguments that the unknown assailant could not have escaped a karate expert and that España like Cortez should have also been feigning sleep, are non-sequitur and deserve scant attention, except for the observation that such asinine arguments have no place in a lawyer's brief. As for Anobling's mistake that Carlito Cortez's nickname was "Sander," we agree with the Solicitor General's observation that "what matters is that Estefanio Anobling was referring to one and the same person in identifying the assailant who stabbed the victim." Anobling categorically pointed out Carlito Cortez in open court as the person who stabbed Dominador Bislig. Such positive identification is not affected by whether the witness knew the person's nickname correctly.

Lastly, accused-appellants contend that the bolo M/Sgt Anobling presented in court was not the one used to stab Dominador Bislig. They rely on the testimony of the examining pathologist, Dr. Apolinar Vacalarez -
Doctor, you have described the wounds inflicted on the alleged victim, could you tell the court, Doctor, if it is possible that this weapon could have caused the wound inflicted on the alleged victim? x x x
May I have the bolo x x x x In the drawing there are three edges, meaning that the wounding instrument had three (3) sides. But this one (bolo), one edge is only sharp and one side is dull and the tip of the bolo is dull and it is slippery. To my mind this is not the weapon.
Again, we do not see how this could affect the credibility of Anobling's testimony. Nowhere did he intimate that the bolo he wrested from the unidentified assailant was the same weapon used to stab Domingo Bislig. On the contrary, when asked what Gerry España was doing during the stabbing, Anobling testified, "(t)his Gerry España was holding Dominador Bislig on his coat while the other one is (sic) holding a jungle bolo."[15] This clearly indicates, according to Anobling, that the jungle bolo was not the "knife" that was used to stab Bislig. Therefore, the pathologist's finding that the jungle bolo was not the knife used to stab Dominador Bislig does not conflict with Anobling's testimony.

Although the lower court correctly held Carlito Cortez and Gerry España criminally liable for the death of Dominador Bislig, it erred in its appreciation of the qualifying circumstances of the crime. The Information alleged three (3) aggravating circumstances, namely, treachery, evident premeditation, and use of superior strength. However, mere allegation will not suffice. The circumstances that qualify the killing as murder must be proved as indubitably as the killing itself.[16] The prosecution failed to prove these circumstances; neither did the trial court discuss these alleged qualifying circumstances in its 11-page decision. Hence, they should not have been convicted of murder but only of homicide.

Article 14, par. (16), of The Revised Penal Code provides that there is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and specifically to insure its execution without risk to himself arising from the defense which the offended party might make. The testimony of Anobling, although sufficient to prove that accused-appellants did indeed kill Dominador Bislig, is nevertheless wanting as far as proof of treachery is concerned.
FISCAL QUILISADO: Were you able to catch Dominador Bislig?
M/SGT ANOBLING: I was about (4) meters away because I was able to see Sander thrust his knife to Dominador Bislig on the left chest.
Q: Who is this Sander you are referring to?
A: It's Carlito Cortez and his nickname or "Angga" is Sander.
Q: What were the three other accused doing while a certain "Sander" stabbed Dominador Bislig?
A: This Carlito Cortez or "Sander" was holding Dominador Bislig by the coat because Dominador Bislig is (sic) wearing a coat at that time.
Q: What about the accused Gerry España, what was he doing?
A: This Gerry España was holding Dominador Bislig on his coat while the other one is (sic) holding a jungle bolo.
Anobling testified indeed that Carlito Cortez, whom he knew as "Sander," stabbed Dominador Bislig, but as to the specific manner of stabbing, its degree of swiftness or suddenness or any indication that treachery was present, no specific details were provided. Nowhere did Anobling state that the attack was swift or sudden or of such a nature that the victim was deprived of the opportunity to defend himself.

Neither was it clear whether España's participation constituted treachery. Anobling merely stated that Gerry España was holding the victim when he was stabbed. He did not state for certain that España immobilized Bislig to give Cortez the opportunity to stab Bislig without exposing himself to danger. The witness related that España held the victim only by the coat, therefore it did not necessarily follow that he was completely deprived of the chance to defend himself. Neither did Anobling state that España was already holding Bislig when Cortez stabbed him. Hence a reasonable possibility existed that although España held Bislig simultaneous to the stabbing, this did not automatically mean that his holding the victim was consciously or deliberately employed to insure the killing.

To establish evident premeditation, there must be proof of (a) the time when the accused determined to commit the crime; (b) an overt act manifestly indicating that the accused clung to his determination to commit the crime; and, (c) the lapse of a sufficient period of time between the determination and the execution of the crime, to allow the accused an opportunity to reflect upon the consequences of the act.[17] None of these elements was proved by the prosecution. Anobling saw the four (4) accused going inside the house of Vicky upon seeing Bislig and his nephew. He also saw them making suspicious gestures. However, we could only speculate as to what went on inside the house of Vicky, and what those gestures actually meant. Whether these could be taken as indicia of premeditation could not be seen merely from Anobling's testimony. Thus, there was no direct proof of evident premeditation or that accused-appellants plotted in advance to liquidate Bislig.

Neither could abuse of superior strength be appreciated. Abuse of superiority is present whenever there is inequality of forces between the victim and the aggressor, assuming a situation of superiority of strength notoriously advantageous for the aggressor and selected or taken advantage of by him in the commission of the crime.[18] There was no showing that accused-appellants took advantage of their number in order to overpower the victim. In Anobling's testimony, nothing was known of the unidentified men's participation in the affray, except that one of them was holding a jungle bolo at the time of the incident. This leaves only two (2) active aggressors, the two (2) accused-appellants Cortez and España. Their number could not have constituted abuse of superior strength.

The prosecution and the lower court seem to have overlooked the fact that Dominador Bislig was not alone when he was attacked. Ismael Ledesma told Anobling that he was going to accompany Bislig to his house. It was even possible that he could have sustained several blows before fleeing. The presence of Ledesma precluded the possibility of abuse of superior strength because then the assailants would not be superior in number to the victim.

The Rules of Court provides that when there is variance between the offense charged in the Information and that proved or established by the evidence, and the offense as charged necessarily includes the offense proved, the accused shall be convicted of the offense proved included in that which is charged.[19] Since the prosecution was not able to prove any qualifying circumstance, accused-appellants should only be sentenced to the lesser crime of homicide which is necessarily included[20] in murder.

With regard to the civil indemnity ex delicto awarded by the trial court in the amount of P50,000.00, the same is proper considering that civil indemnity is automatically granted to the heirs of the victim without need of proof other than the commisssion of the crime.[21]

Likewise the award of moral damages by the trial court in the amount of P100,000.00 to the heirs of the victim is fair and just, even though the prosecution did not present any proof, apart from the fact of death of the victim and the culpability of the accused. Article 2217 of the Civil Code, which governs the award of moral damages, provides -
Art. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act or omission.
A careful scrutiny of Art. 2217 shows that it does not preclude a more liberal interpretation where it is sufficient that the claimants prove only the fact of death of the victim and the guilt of the accused. From these established facts, the existence of moral damages can be easily deduced. Once the accused is convicted of homicide, the fact of death of the victim and the culpability of the person against whom damages are claimed, are already undisputed. Requiring proof of damage over and above the already established homicide and culpability of the accused becomes a superfluity. That the families of homicide victims suffer mental anguish, serious anxiety, moral shock and wounded feelings is too obvious to be overemphasized. For, it is the natural tendency of human beings to mourn the death of their loved ones. Moral damages follow death in a family as night follows day.

We are not unaware of People v. Manegdeg[22] and other cases which held that for moral damages to be awarded it is essential that the claimant satisfactorily proves the existence of the factual basis of the damage and its casual relation to defendant's acts. However, we do not contravene the spirit and the letter of the law by interpreting "factual basis" to mean the fact of death of the victim. Once death is proved, it takes only simple logic to deduce the existence of moral damages. With this interpretation, we can do away with the tedious and time-consuming process of proving the suffering and anguish of the heirs of the victim which, more often than not, is almost a matter of formality or a useless ceremony which delays and consumes the time of the court. After all, as already intimated, it is undisputed that the families of victims of violence invariably suffer as a consequence thereof.

In rape cases, the mere fact of conviction of the accused suffices as a basis to adjudge him, in the same action, liable for an award of moral damages, without independent proof thereof, to the victim and her parents.[23] The justification for this rule is that "x x x the law presumes that not only the woman who was seduced, abducted, raped or abused, but her parents as well, naturally suffers besmirched reputation, social humiliation, mental anguish and wounded feelings."

If this presumption avails to parents of rape victims, then with all the more reason that a similar presumption should apply to the heirs of homicide victims who, like rape victims, naturally suffer mental anguish, serious anxiety, wounded feelings, and moral shock, among others, as a direct result of the traumatic experience. The anguish and social humiliation suffered by parents of rape victims, although indeed grave, may disappear with nurture and care and the loss of social standing restored through the lapse of time. But in homicide or murder where the victim dies, the loss is complete and irreparable. No amount of nurturing or caring will ever replace the life of a parent or an offspring, or any member of the bereaved family.

Thus, as in rape cases, the heirs of homicide victims should be entitled to moral damages without need of independent proof. The conviction of the accused for the crime is enough to justify the award, and the award of P100,000.00 by the trial court must be sustained.

One final word. The Court cannot write finis to this decision without expressing its displeasure over the lackadaisical attitude and apparent want of industry and due diligence of counsel for accused-appellants in the handling of this case. First, counsel was held in contempt and fined P2,000.00 for failing to file the Appellants' Brief within the reglementary period and failing to satisfactorily explain the omission. Second, not learning his lesson, on 7 May 1999 or almost seven (7) months after the expiration of his original period, counsel filed a four-page brief replete with name-calling, typographical and elementary grammatical errors, and bereft of any discernible merit. Even the most perfunctory reading would reveal the spelling and grammatical errors that counsel committed. The existence of such mistakes leads the Court to believe that defense counsel did not even bother to edit his abbreviated brief, revealing a lack of diligence bordering on betrayal of his clients' trust.

The pathetic lack of merit in the arguments of defense counsel in his brief has been discussed earlier. It bears repeating that this Court will not tolerate such wanton disregard of the client's rights. The total absence of any semblance of discussion on genuine issues in the Appellants' Brief exhibits a deplorable absence of seriousness on the part of counsel in the discharge of his professional duties, as far as his client and the courts are concerned.[24] Neither will this Court tolerate unwarranted insults hurled by counsel at the prosecution's witness. Arguments, written or oral, should be couched in such language as may properly be addressed by one gentleman to another.[25] The murder of counsel's son, while truly an unfortunate incident deserving of sympathy for counsel from this Court, is nevertheless no excuse for him to abandon the cause or neglect the legitimate interest and welfare of his clients. In fact, such loss of a son should all the more inspire counsel to defend his clients with warmth and zeal as he would in the prosecution of his son's murderers to ensure that true justice is done.

The penalty for homicide under The Revised Penal Code is reclusion temporal. Applying the Indeterminate Sentence Law, and there being no modifying circumstance, the maximum to be imposed upon the accused should be taken from the medium period of reclusion temporal, the range of which is fourteen (14) years eight (8) months and one (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree which is prision mayor, the range of which is six (6) years and one (1) day to twelve (12) years, in any of its periods.

WHEREFORE, the appealed Decision of the court a quo finding accused-appellants CARLITO CORTEZ and GERRY ESPAÑA guilty of murder and imposing upon them the penalty of "life imprisonment"[26] is MODIFIED; they are instead found guilty of homicide under Art. 249 of The Revised Penal Code and each sentenced to suffer an indeterminate prison term of eight (8) years four (4) months and one (1) day of prision mayor medium, as minimum, to fourteen (14) years ten (10) months and twenty (20) days of reclusion temporal medium, as maximum, and to pay jointly and severally the heirs of Dominador Bislig P100,000.00 as moral damages and P50,000.00 as civil indemnity ex delicto, and to pay the costs.


Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur.

[1] Decision penned by Judge Alejandro M. Velez, RTC-Br. 20, Cagayan de Oro City.

[2] The trial court could have meant reclusion perpetua.

[3] TSN, 9 March 1993, p. 13.

[4] TSN, 17 May 1994, p. 11.

[5] Ibid.

[6] People v. Ramos, G.R. Nos. 131261-62, 10 August 1999, 312 SCRA 137.

[7] People v. Francisco, G.R. No. 110873, 23 September 1999, 315 SCRA 114.

[8] People v. Violin, G.R. Nos. 114003-06, 14 January 1997.

[9] People v. Baniel, G.R. No. 108492, 15 July 1997, 275 SCRA 472; People v. Patawaran, G.R. No. 108616, 19 June 1997, 274 SCRA 130; People v. Henson, G.R. No. 116732, 2 April 1997, 270 SCRA 634.

[10] People v. Enriquez, G.R. No. 99838, 23 October 1997, 281 SCRA 103.

[11] People v. Patawaran, see Note 9.

[12] People v. Abrecinoz, G.R. Nos. 122474-76, 17 October 1997, 281 SCRA 59.

[13] TSN, 9 March 1993, p. 7.

[14] Id., p. 10.

[15] TSN, 9 March 1993, p. 17.

[16] People v. Tavas, G.R. No. 123969, 11 February 1999, 303 SCRA 86.

[17] People v. Francisco, G.R. No. 110873, September 23, 1999, 315 SCRA 114; People v. Quinao, G.R. No. 108454, 13 March 1997, 269 SCRA 495.

[18] People v. Asis, G.R. No. 118936, 9 February 1998, 286 SCRA 64; People v. Daquipil, G.R. Nos. 86305-06, 20 January 1995, 240 SCRA 314.

[19] Sec. 4, Rule 120, Rules of Court.

[20] Sec. 5, Rule 120 of the Rules of Court further provides that "An offense charged necessarily includes that which is proved, when some of the essential elements or ingredients of the former, as this is alleged in the complaint or information, constitute the latter x x x x"

[21] People v. Dimailig, G.R. No. 120170, 31 May 2000; People v. Tolibas G.R. No. 103506, 15 February 2000.

[22] G.R. No. 115470, 13 October 1999, 316 SCRA 689.

[23] People v. Fontanilla, No. L-25354, 28 June 1968, 23 SCRA 1227.

[24] See Government Service Insurance System v. Court of Appeals, G.R. No. 128523, 25 September 1998, 296 SCRA 514.

[25] People v. Taneo, G.R. No. 117683, 16 January 1998, 284 SCRA 251.

[26] See Note 2.

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