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Viliborghi (D) owned a store which had been burglarized on numerous occasions. D lived in the store. D heard noises in the night and investigated with a gun. D saw an open window and a person reaching through it. D shot and killed the intruder. After the killing, it was found that the intruder had taken less than $50 worth of food. The intruder was guilty of misdemeanor theft. D was charged with murder and was convicted of manslaughter. D appealed.

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