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March 9, 1961

UNITED STATES of America, Plaintiff,
John A. NAPLES, Defendant

The opinion of the court was delivered by: HOLTZOFF

The defendant, John A. Naples, is on trial for murder in the first degree, housebreaking and petit larceny. The specific charges are that on the evening of December 16, 1958, the defendant broke and entered into an apartment at 225 Massachusetts Avenue, N.E., in Washington, D.C.; that he ransacked it in search for money; that, as he was about to leave, he was surprised by the return of the occupant, Edna G. Jewel, the deceased; that he fatally stabbed her, and then stole some money out of her pocketbook.

The indictment contains four counts. The first count charges murder in the perpetration of a housebreaking while armed with and using a dangerous weapon, which under the District of Columbia Code constitutes murder in the first degree. The second count involves premeditated murder, which is likewise murder in the first degree. The third count is directed to housebreaking. *fn1" The fourth count alleges petit larceny.

 The pertinent parts of the definition of murder in the first degree in the District of Columbia Code, read as follows (D.C.Code 1951 Ed. Section 22-2401):

 'Whoever, being of sound memory and discretion kills another purposely, * * * of deliberate and premeditated malice * * *, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, * * * rape, mayhem, robbery, or kidnapping, or in perpetrating or in attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree.' (Emphasis supplied.)

 By advice of counsel, the defendant waived a trial by jury. While in this court the accused frequently elect to be tried by the court without a jury, this course is not ordinarily followed if murder in the first degree is charged, since in that event under the District of Columbia Code the death penalty is mandatory in case of conviction. Mr. Murray very candidly and cogently explained, however, that he had reached the conclusion that the rights of the defendant would be better protected by a trial by the court alone, than by a jury trial. His reasons need not be discussed here. As a further precaution, the court searchingly interrogated the defendant in person in order to make certain that he understood his right to a jury trial; that he deliberately desired and preferred a trial by the court alone; and that he fully comprehended the consequences that might follow from his choice. In the light of these circumstances and in view of the importance of the matter to the defendant, the court felt morally obligated to accept the onerous burden of trying this case without a jury. *fn2"

 The evidence introduced at the trial establishes the following facts. The deceased occupied an apartment located on the first floor back of the stairway, in an apartment house at 225 Massachusetts Avenue, Northeast, in Washington, D.C. Shortly after 10:00 p.m., on December 16, 1958, her dead body was discovered by a neighbor and the resident manager of the building, lying on the floor of her apartment immediately inside the front door. An autopsy showed that death had been caused by two stab wounds: one in the neck, penetrating the trachea and the internal jugular vein; and the other in the chest. In addition the corpse bore several superficial scratches. Shortly after 1:00 o'clock of the following afternoon, the defendant, John A. Naples, was arrested and promptly made a full confession.

 The events of the fateful evening were as follows. On December 16, 1958, the defendant, John A. Naples, was staying with his mother and twin brother, Louis, at their mother's apartment at 227 Massachusetts Avenue, Northeast. That evening he decided to steal some money. After packing a bayonet in a canvas overnight bag, he put on his gloves, later explaining that he did so in order to avoid leaving fingerprints. Carrying the bag in one hand, he went out seeking a place where he could accomplish his purpose. He first went next door, to 225 Massachusetts Avenue, Northeast. He looked around on the ground floor and saw that the door of the apartment located back of the stairway was slightly ajar and that lights were burning inside. He approached the entrance and in order to ascertain whether anyone was present, he said something in a loud voice. Hearing no response, he assumed that the occupants were absent and went in. He ransacked the closets and the bureau drawers in search for money, and found three or four dollars in currency and some coins, which he took. Leaving the place in disarray, he was about to depart, when the deceased, a heavy woman of about fifty years of age, returned home. She shouted at him: 'What are you doing here? Get out. Get out.', and threw her pocketbook at him. Apparently observing that she was blocking his exit and becoming panic-stricken and enraged, he took the bayonet out of his bag, rushed at her, and stabbed her several times. As already stated, two of the stab wounds, one in the neck and one in the chest, were deep and proved fatal. Seeing blood spurting from her, and noticing that there was blood on his gloves, he decided to burn them. He deliberately took them off, laid them on the burners of the stove and ignited the gas. He put the bayonet back in the bag. He rifled his victim's pocketbook and took a ten dollar bill and some other money, throwing the empty wallet on a couch. He then extinguished the fire. By that time the burning process had progressed so far that when later the police tried to lift the gloves from the stove, they immediately turned to ashes.

 Finally the defendant departed and proceeded to Union Station, where he washed himself for the purpose of removing blood stains and ate some food at a lunch counter. There he also met his mother and brother. Instead of going home with them he spent the night at the Y.M.C.A. He checked out on the following morning and, in order to meet his brother, went to the Palace Theater, where the latter was employed.

 He arrived at the theater shortly after 1:00 o'clock in the afternoon and was immediately taken into custody by police officers who were looking for him. At the time of his arrest the defendant was carrying the canvas bag containing the bayonet. An examination later conducted at the laboratory of the Federal Bureau of Investigation disclosed that there were stains of human blood on the bayonet, although the amount of blood found was insufficient to make it possible to determine its type.

 In view of the gravity of the issues presented at the trial, the court has reviewed its adverse rulings on objections to the admission of certain items of evidence and reference will be made to these matters at this time. Counsel for the defendant objected to the introduction of the canvas bag and the bayonet, asserting that they had been unlawfully seized from the defendant's person. He contended that the defendant's arrest was illegal in that it had been made without a warrant and without probable cause and that, therefore, the seizure was violative of his rights under the Fourth Amendment.

 Accordingly the court held a preliminary hearing on the question whether there was probable cause for the arrest. On this issue the Government called as a witness Detective Buch, one of the many police officers who were working on the case. He testified that on the morning of December 17, he received an anonymous telephone call. The caller stated that he thought he had some information in regard to the murder that occurred at 225 Massachusetts Avenue on the previous night, and that he had a friend who might be involved in it. He enquired whether a knife had been used, and received an affirmative reply from Buch. Refusing to reveal his identity, the caller stated that he would telephone again. About a half hour later, the same person called and stated that he had a friend to whom he had talked on the previous night; that this person was known to carry a knife; and that he, the caller, thought this person was involved in the homicide. The caller suggested that the officer meet him at the Palace Theater, and instructed him to ask for Louis. Accompanied by a brother officer, Buch immediately proceeded to the Palace Theater and enquired for Louis. He was directed to a man whose name was Louis Naples, and whom the officer had previously known. Louis Naples then told the officer that it was his brother that he had referred to; that he had talked to his brother on the telephone the night before; that his brother said that he had done something awful and would not be home for some time; and that his brother carried a knife in an overnight bag. He then made a telephone call and returned and stated that his brother had spent the night at the Y.M.C.A. The officer telephoned the Y.M.C.A. and was informed that John Naples had checked out. Louis Naples finally told the officer that his brother, John, was coming to the theater. The two officers unobtrusively waited and at about 1:15 p.m. John Naples arrived carrying the canvas bag and was taken into custody.

 The court held that the information received by Officer Buch from Louis Naples, a part of which was verified by a telephone call to the Y.M.C.A., was sufficient to constitute probable cause for the defendant's arrest. This is not a topic that merits prolonged or detailed discussion. Suffice it to say that probable cause for an arrest need not amount to sufficient evidence to sustain a conviction, or to warrant an indictment, or even to justify a committing magistrate in holding the defendant for the grand jury. It need not be evidence that is admissible in court at a trial. It may be incompetent as hearsay or inadmissible for some other reason. It need be only such information as would warrant a reasonable man of prudence and caution in believing that the prisoner committed the offense for which he was being arrested. Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327; Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879; Bell v. United States, 102 U.S.App.D.C. 383, 387, 254 F.2d 82, certiorari denied 358 U.S. 885, 79 S. Ct. 126, 3 L. Ed. 2d 113; United States v. Heitner, 2 Cir., 149 F.2d 105, 106, Learned Hand, J.

 In Goldsmith v. United States, 107 U.S.App.D.C. 305, 315, 277 F.2d 335, 345, the Court of Appeals for this Circuit clearly pointed out that,

 'What may constitute probable cause for arrest does not necessarily constitute probable cause for a charge on arraignment.'

 In the case at bar the court is of the opinion that not only was there probable cause for the arrest, but that the officer would have even acted improvidently if he had failed to apprehend the defendant in the light of the information received from the defendant's brother. The conclusion necessarily follows that the seizure of the overnight bag and its contents was lawful and that these articles were properly admitted in evidence. It must be added, however, that even if these articles had been excluded, the remaining evidence would have led to the same conclusion as that to which the court has otherwise arrived. Consequently the question here discussed is purely academic.

 Upon his arrest the defendant was forthwith transported in a patrol wagon to the police station of Precinct No. 9, arriving there at about 1:30 p.m. He was immediately led upstairs to the detectives' room. A short conversation, lasting between five and ten minutes, then took place between him and Lieutenant Culpepper, the supervisor of detectives for that district. It opened with a statement by Lieutenant Culpepper that the defendant did not have to make a statement and that he did not even have to talk, to which the defendant replied, 'I know that.' The interview continued as follows:

 'I asked him if he thought he would feel better if he told me the truth. He said, 'The truth about what?' I said, 'Haven't you done something that you know is wrong and that you are ashamed of?' He said, 'Do you mean about the lady?' I said, 'Yes'.' (Tr. p. 110.) *fn3"

 'He said, 'Well, I was prowling in the hallway * * * in the apartment next to my house' * * * he said he lived at the 200 block of Massachusetts Avenue, Northeast. He said that he was looking around in the hallway for something to steal * * * he saw the door to the apartment in the rear of the hallway was slightly ajar * * * he went over to the door, stood there for a period of time, and realized that there was no one in the apartment. He said that he there been someone in the apartment they would have heard him. He said he went into the apartment and searched it, taking two dollars from a drawer in the small table in the living room. * * * He said he was searching the apartment and going into a closet, which he was going into when a lady came in. She screamed at him, 'What are you doing here?' She threw a book at him and said, 'Get out of here.'

 'He said that at that time everything went dark. He did not remember anything until he came to. He saw the lady on the floor, there was a lot of blood about, and he knew that he had hurt her.' (Tr. pp. 111, 112.)

 During the conversation Lieutenant Culpepper communicated by telephone with the Homicide Squad of the Police Department and requested its representatives to come to the Police Station right away. While awaiting their appearance the defendant was taken downstairs and a charge against him was placed in the arrest book.

 Captain Hartnett, the Chief of the Homicide Squad, arrived at Lieutenant Culpepper's office about 1:55 p.m. In the meantime the defendant had been brought back to the room. In the defendant's presence Lieutenant Culpepper briefly summarized to Captain Hartnett the statement previously made by the defendant. Captain Hartnett testified that, after the asked the defendant a few questions, the following took place (Tr. p. 147):

 'I then told him that he was going to be brought down to Police Headquarters and that I would like for him to stop by the apartment on the way down so we could go through and let him show us exactly what transpired there, and he said he was willing to do it.'

 The entire conversation in which Captain Hartnett participated consumed five or ten minutes. The defendant was thereupon immediately taken by automobile, driven by Captain Hartnett, to 225 Massachusetts Avenue, Northeast, which was on the direct route from the police station to Police Headquarters. Other officers were also in the car. A cousin of the deceased happened to be in the building when the party arrived and Captain Hartnett invited him to be present.

 The Assistant United States Attorney requested Captain Hartnett to state what the defendant did or said at the apartment house. Counsel for the defendant objected on the ground that the stop at the apartment house constituted an unnecessary delay prior to bringing the defendant before a committing magistrate and, consequently, any statements there made by the defendant were inadmissible. Counsel relied on the case of Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479, which held that if there is an unnecessary delay prior to taking a prisoner before a committing magistrate, in violation of Rule 5(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., any statement made by the defendant during the period of unnecessary delay is inadmissible in evidence.

 At this point it seems desirable to consider the purpose and the application of this rule. It drastically differs from the doctrine that excludes involuntary confessions, that is, statements obtained by coercion, whether that coercion be physical, mental, or moral. To obtain confessions in this manner is abhorrent to civilized standards of administering the criminal law. It is contrary to natural justice and is violative of due process of law. Moreover a statement secured by such means may be unreliable. Consequently, a constitutional principle is involved. On the other hand, the rule of the Mallory case is not based on any constitutional doctrine, but is purely artificial and procedural. It is intended solely as a severe sanction to prevent violations of Rule 5(a), which requires that an arrested person be brought before a committing magistrate with due promptness. Necessarily the rule must be reasonably construed and applied. The Supreme Court so stated in the course of its opinion (354 U.S. at page 455, 77 S. Ct. at page 1359):

 'The duty enjoined upon arresting officers to arraign 'without unnecessary delay' indicates that the command does not call for mechanical or automatic obedience. Circumstances may justify a brief delay between arrest and arraignment, * * *'

 In this Circuit, the rule has been administered in this spirit.

 Thus in United States v. Heideman, D.C., 21 F.R.D. 335, affirmed 104 U.S.App.D.C. 128, 259 F.2d 943, the defendant was brought to police headquarters at about 3:00 p.m. He made a confession at about 4:15 p.m. The admission of the confession in evidence over the objection of the defendant based on the Mallory case, was sustained by the Court of Appeals. In its opinion the court made the following significant remarks (104 U.S.App.2d at pages 130, 131, 259 F.2d at page 945):

 'At the outset, the police, assuming they have probable cause for arrest, are entitled to ask the arrested suspect what he knows about a crime. If he denies knowledge, they are entitled to state to him what evidence they have and ask whether he cares to comment upon it. A strong circumstantial case which would satisfy the U.S. Commissioner, prima facie, might well be explained away by a suspect who knew what information the police relied on -- hence leading to no charge being made. If the suspect continues to deny knowledge, the police are entitled to conclude the interview by saying, in effect, 'Do you have anything further to tell us, or do you just want to let it stand the way it is?' * * * Such questions as these the police may ask -- indeed should ask; it is only when the questioning crosses into what can be termed 'grilling,' or is continued beyond the brief period allowed, that the resulting confession may be held inadmissible.'

 In Goldsmith v. United States, 107 U.S.App.D.C. 305, 312, 277 F.2d 335, the defendants were brought to the police station at 1:00 p.m. and were intermittently examined until 3:30 p.m. At 3:35 p.m. they were confronted with a witness who had made accusatory statements against them and they immediately made an oral confession. Their statements were then reduced to writing. This process took a little over an hour. At about 5:00 p.m. they were taken to the Municipal Court and at 5:30 p.m. a preliminary hearing took place. The Court of Appeals indicated the the written statements made by the defendants were admissible in evidence, and were not subject to exclusion under the rule of the Mallory case. The court made the following illuminating observations (107 U.S.App.D.C. at page 313, 277 F.2d at page 343):

 'The record shows that immediately upon being physically confronted with Raymond Carter, * * * they admitted the crime. Can it reasonably be said at that point that it was unnecessary or unreasonable for the police to take the time to reduce the statements to writing and have them signed? No court has yet held that a reasonable period of time elapsing between the occurrence of an oral confession and the time reasonably necessary to reduce it to writing for it to be signed is 'unnecessary delay' and we are not prepared to do so now.'

 So in the case at bar, if the defendant was willing to demonstrate how the crime was committed, it would be amazing to hold that the police should not have taken the time to permit him to do so.

 At time questioning of a suspect by the police is discussed as though there is something furtive, sinister or reprehensible about it. There is no reasonable basis for such an attitude. There is nothing inherently evil in the examination of a suspect by the police. On the contrary, it is the duty of the police to question a prisoner promptly after his arrest, provided that this process does not degenerate into a prolonged and oppressive interrogation. This duty is owed by the police both to the public and to the defendant for the protection of each.

 Accordingly, the court admitted Captain Hartnett's testimony concerning the so-called 're-enactment' of the crime that took place at 2:15 p.m. at the scene where it had been committed. The principal portions of his testimony on this point are as follows (Tr. pp. 162, 163, 164, 165, 166):

 'We arrived at the apartment and entered, and * * * I told the defendant that I wanted him * * * to go through the same motions that he had on the night the offense occurred. He said all right * * *

 'He walked back to the rear of the first floor and he picked out the apartment door on the lefthand side, which was apartment A, the apartment of the deceased. When we got to the front door of this apartment I asked him, 'Why did you pick this particular apartment?'

 'And he said, 'I noticed a light around the edges of the door.' The door was open, just a little bit, 'I could see the light.' * * * 'I opened the door and I said something. I don't know what I said but I said something to see if anybody would answer * * * 'Nothing happened, so I opened the door and I went in. I looked around the apartment with a quick look and there was nobody there.'

 "I went over to this table,' and he went over to a table in the living room, and he said there were three or four dollar bills on the table * * * 'I took those and I went into the drawer of this same table,' and he said * * * 'there were two or three dollars in change in that drawer' and he took that.

 'Then we went around to all the tables, to a wardrobe locker in the living room, and he said he went through all these places. Then he went into the bedroom and he pointed out the dresser and said he had taken out the drawers and gone through the drawers. He then went into the bathroom and there was one cabinet in there that had a drawer in it, he took that drawer out, he went through that and he didn't find anything there. Then he went into the kitchen and he went through two drawers in there. He said he he didn't get anything there. At that time I asked him was it possible that he got the knife out of that drawer. He said, 'No, I had my own knife, I brought it with me.'

 "Well, I was back in the living room and I was just about getting ready to leave, * * * when this woman came in. * * * It was a big woman. And she said, 'What are you doing here? Get out, get out, get out.'

 'At the same time she threw something at him. * * * It made him mad and he took his knife and he rushed her. He says, 'I hit her.' 'After that, I am not too sure.' I know I saw blood squirting out. * * * I am a little blank after that, * * * the next thing that I remember was pulling the knife out of her chest. * * * Then I wiped the blood off of the knife on her dress. * * * I felt something wet in my hand and I looked and I saw that I had blood.'

 'At the time he demonstrated how he laid the gloves on the stove I asked him, 'Why did you wear gloves in the first place?' And he said, 'Well, I figured on handling a lot of things and I didn't want to leave any prints."

 After the re-enactment was completed at about 2:45 p.m., the defendant was immediately brought to police headquarters, where an appropriate record, known as a 'line-up sheet', was prepared, and his fingerprints and photographs were taken in the Identification Bureau. This process was completed at about 3:40 p.m., when the defendant was conducted to the office of the United States Commissioner. A preliminary hearing took place at about 4:00 p.m.

 Manifestly the problem is not whether there was any unnecessary delay between 1:30 p.m., when the defendant arrived at the police station, and 4:30 p.m., the time of the preliminary hearing, although obviously a three-hour interval cannot be deemed unreasonable. Actually the question is whether there was any unnecessary delay between 1:30 p.m. and 2:45 p.m., when the re-enactment of the crime was completed. *fn4" The court is not aware of any case in which one and a quarter hours was deemed an undue interval following an arrest.

 At the preliminary hearing the defendant was bound over for the grand jury and committed to jail. Two days later Lt. Culpepper and Lt. Donahue of the Police Department interviewed him in the rotunda of the jail. The defendant was asked by Lt. Donahue whether he would discuss the incident with his visitors and agreed to do so. He freely repeated the story, which he had previously related to Lt. Culpepper at the police station and to Captain Hartnett at the apartment. It would be unnecessary reiteration to summarize it again.

 Counsel for the defendant interposed two objections to the admission of Lt. Donahue's testimony concerning the confession made by the defendant at the jail: first, that the confession was involuntary, although he did not specify any grounds for this contention; and, second, that it was obtained in violation of the rule of the Mallory case. Accordingly, the court held a preliminary hearing on the question whether the confession at the jail was voluntary. Lt. Donahue testified that when he and his companion arrived at the jail, they filled out a form indicating that they desired to see the defendant; that this card was taken to the defendant by a prison guard, who enquired of him whether he was willing or desired to see his visitors; and that the defendant replied in the affirmative. Lt. Donahue testified that the defendant was brought out into the rotunda of the jail and that the two police officers and the defendant were then assigned to a table, and that the three sat down around it.

 The defendant was greeted by the police officers and there was an exchange of amenities such as might be expected on a social visit. Lt. Donahue testified that he then advised the defendant that the latter did not have to make a statement; that if he had not as yet consulted an attorney, he had a right to do so before talking; that the defendant was asked whether he recalled having been given the same advice by the United States Commissioner. The defendant replied that he had told the rest of the police officers and he saw no reason why he would not tell Lt. Donahue. The latter then requested the defendant to recount what had occurred at 225 Massachusetts Avenue and, as stated above, the defendant narrated what had taken place.

 No evidence was tendered in support of the objection that the confession at the jail was involuntary, although the court expressly called to the attention of defense counsel that it was its practice at preliminary hearings as to admissibility of a statement, to permit the defendant to take the witness stand and to confine his testimony to the narrow issue involved in the hearing, without waiving his general privilege against self-incrimination and without subjecting himself to cross-examination on other issues of the case. The defendant did not avail himself of this opportunity. The statement made at the jail was clearly voluntary and the objection on that ground was overruled. In fact it should be observed that there is no suggestion that the defendant was physically mistreated by the police at any time, or that any mental or moral pressure was exerted against him.

 The objection that the confession was obtained in violation of the principle of the Mallory case was likewise untenable. The purpose of that doctrine is to enforce compliance with the requirement that an arrested person be brought before a committing magistrate within a reasonable time after being taken into custody. It imposes a penalty for failure to comply with this rule. The principle obviously has no application to any statements obtained or made after the defendant has appeared before a magistrate.

 In Goldsmith v. United States, 107 U.S.App.D.C. 305, 311, 277 F.2d 335, to which reference has already been made in another connection, the Court of Appeals expressly ruled that the Mallory case does not apply to statements made by a prisoner subsequently to a hearing before a committing magistrate. *fn5"

 Finally, it should be observed in connection with the discussion of the objections to the introduction of all of the foregoing evidence, that even if the canvas bag and its contents were excluded, and even if the so-called re-enactment of the crime at the apartment were not admitted, this court would still arrive at the same conclusion that it has reached on the basis of the statement made to Lt. Culpepper at the police station immediately after the defendant was brought there, *fn6" and the confession repeated at the jail to Lt. Donahue. In fact either one of these statements standing alone is sufficient to connect the defendant with the crime.

 At the conclusion of the evidence presented by the Government, counsel for the defendant moved for a judgment of acquittal on the ground that the corpus delicti had not been sufficiently proven as to the first count of the indictment. It has indeed been the traditional doctrine that the corpus delicti in any criminal case must be established by evidence independent of any confession or admission of the defendant, and that confessions and admissions may be used only to connect the defendant with the crime. Again, the historic rule has been that in homicide cases proof of corpus delicti consists of, first, evidence of the death of the victim; and second, evidence that the death occurred as a result of foul play, Murray v. United States, 53 App.D.C. 119, 127, 288 F. 1008; Evans v. United States, 10 Cir., 122 F.2d 461, 465. Unquestionably, this rule has been fully complied with in the instant case. As indicated above, the death of the victim and the fact that her demise was brought about by criminal means, namely, stab wounds, were established beyond a reasonable doubt by evidence entirely independent of the defendant's admissions or confessions. It is urged by counsel for the defendant, however, that the corpus delicti under the first count of the indictment includes an additional element, namely, independent proof that the death occurred in the perpetration of a housebreaking. No authority is cited in support of this contention and the court does not agree with it. That the homicide was committed in the course of the perpetration of another felony in merely one of the circumstances that classifies the homicide into the appropriate category. It is a substitute for premeditation and deliberation. It has never been the rule that proof of premeditation and deliberation is part of the corpus delicti. Actually, however, that the killing took place in connection with the housebreaking was established by evidence independent of the defendant's statements. The facts that the victim's dead body was found lying on the floor of her apartment and that the apartment was in disarray, with its closets, bureau drawers and table drawers exposed and rifled, and her empty pocketbook found open and lying on the couch, are sufficient to establish that there had been a housebreaking and that the homicide took place in connection with it.

 Moreover the rigid requirement that the corpus delicti must be proven by evidence entirely aside from the defendant's admissions, is no longer in force. It was modified by the Supreme Court in Opper v. United States, 348 U.S. 84, 93, 75 S. Ct. ...

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