{ "id": 4725898, "name": "STATE OF NORTH CAROLINA v. GEORGE R. KORNEGAY, JR.", "name_abbreviation": "State v. Kornegay", "decision_date": "1985-02-27", "docket_number": "No. 500PA84", "first_page": "1", "last_page": "33", "citations": [ { "type": "official", "cite": "313 N.C. 1" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "414 U.S. 874", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11762922, 11762669, 11762557, 11763119, 11762751, 11762997, 11763196, 11762845, 11762495 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/414/0874-06", "/us/414/0874-03", "/us/414/0874-02", "/us/414/0874-08", "/us/414/0874-04", "/us/414/0874-07", "/us/414/0874-09", "/us/414/0874-05", "/us/414/0874-01" ] }, { "cite": "444 U.S. 1031", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11433766, 11433734, 11433703, 11433630, 11433515, 11433551, 11433587, 11433662 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/444/1031-08", "/us/444/1031-07", "/us/444/1031-06", "/us/444/1031-04", "/us/444/1031-01", "/us/444/1031-02", "/us/444/1031-03", "/us/444/1031-05" ] }, { "cite": "11 S.E. 2d 149", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1940, "pin_cites": [ { "page": "151" } ], "opinion_index": 0 }, { "cite": "218 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619529 ], "weight": 2, "year": 1940, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/nc/218/0373-01" ] }, { "cite": "183 S.E. 2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "544", "parenthetical": "quoting State v. Jackson, 218 N.C. 373, 11 S.E. 2d 149 (1940)" } ], "opinion_index": 0 }, { "cite": "279 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569568 ], "year": 1971, "pin_cites": [ { "page": "452", "parenthetical": "quoting State v. 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"category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575616 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "563" }, { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0547-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-254", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1981, "pin_cites": [ { "page": "(a)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "257 S.E. 2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573254, 8573319, 8573365, 8573277, 8573341 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0616-01", "/nc/297/0616-03", "/nc/297/0616-05", "/nc/297/0616-02", "/nc/297/0616-04" ] }, { "cite": "253 S.E. 2d 266", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "269" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 580", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551953 ], "year": 1979, "pin_cites": [ { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0580-01" ] }, { "cite": "323 S.E. 2d 926", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755493, 4755336, 4753483, 4753324, 4752111 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0622-01", "/nc/312/0622-05", "/nc/312/0622-03", "/nc/312/0622-04", "/nc/312/0622-02" ] }, { "cite": "318 S.E. 2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "70 N.C. App. 63", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520289 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/70/0063-01" ] }, { "cite": "293 S.E. 2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "132" } ], "opinion_index": 0 }, { "cite": "306 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571007 ], "year": 1982, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0394-01" ] }, { "cite": "429 U.S. 1123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 7811, 6954, 6922, 6220, 6484, 7704, 5630 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/429/1123-05", "/us/429/1123-06", "/us/429/1123-04", "/us/429/1123-03", "/us/429/1123-01", "/us/429/1123-02", "/us/429/1123-07" ] }, { "cite": "225 S.E. 2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "792" } ], "opinion_index": 0 }, { "cite": "290 N.C. 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560772 ], "year": 1976, "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0203-01" ] }, { "cite": "222 S.E. 2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "391" } ], "opinion_index": 0 }, { "cite": "289 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569872 ], "year": 1976, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0445-01" ] }, { "cite": "185 S.E. 2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "887" } ], "opinion_index": 0 }, { "cite": "280 N.C. 341", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571955 ], "year": 1972, "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0341-01" ] }, { "cite": "541 F. Supp. 207", "category": "reporters:federal", "reporter": "F. 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App. 271", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552923 ], "year": 1978, "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0271-01" ] }, { "cite": "427 U.S. 463", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179008 ], "weight": 4, "year": 1976, "opinion_index": 0, "case_paths": [ "/us/427/0463-01" ] }, { "cite": "104 S.Ct. 69", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1983, "opinion_index": 0 }, { "cite": "683 F. 2d 1343", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 533846 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "1349" } ], "opinion_index": 0, "case_paths": [ "/f2d/683/1343-01" ] }, { "cite": "462 U.S. 213", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187462 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/us/462/0213-01" ] }, { "cite": "191 S.E. 2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "755" } ], "opinion_index": 0 }, { "cite": "282 N.C. 125", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562900 ], "year": 1972, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0125-01" ] }, { "cite": "180 S.E. 2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561152 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0561-01" ] }, { "cite": "230 S.E. 2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "511", "parenthetical": "quoting State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971), cert. denied, 414 U.S. 874 (1973)" } ], "opinion_index": 0 }, { "cite": "291 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558351 ], "year": 1976, "pin_cites": [ { "page": "406", "parenthetical": "quoting State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971), cert. denied, 414 U.S. 874 (1973)" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0399-01" ] }, { "cite": "104 S.Ct. 2501", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 6201711 ], "year": 1984, "pin_cites": [ { "page": "2510-11" } ], "opinion_index": 0, "case_paths": [ "/us/467/0431-01" ] }, { "cite": "297 S.E. 2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "548" } ], "opinion_index": 0 }, { "cite": "307 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561131 ], "year": 1982, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0130-01" ] }, { "cite": "601 F. 2d 281", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 498679 ], "year": 1979, "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/f2d/601/0281-01" ] }, { "cite": "539 F. 2d 1", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1039946 ], "weight": 4, "year": 1976, "pin_cites": [ { "page": "6" }, { "page": "7-8" }, { "page": "8" }, { "page": "7, 8" } ], "opinion_index": 0, "case_paths": [ "/f2d/539/0001-01" ] }, { "cite": "403 U.S. 443", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027286 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "487" }, { "page": "488-89" } ], "opinion_index": 0, "case_paths": [ "/us/403/0443-01" ] } ], "analysis": { "cardinality": 1903, "char_count": 78271, "ocr_confidence": 0.837, "pagerank": { "raw": 3.065556043933911e-07, "percentile": 0.8569119280699377 }, "sha256": "87b48df55cd3e576f6f922409ccff0e25b53f542a1d92b6774492feba515dd3a", "simhash": "1:8fa9ea6ae46bb069", "word_count": 13084 }, "last_updated": "2023-07-14T20:24:31.098159+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice VAUGHN did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. GEORGE R. KORNEGAY, JR." ], "opinions": [ { "text": "BRANCH, Chief Justice.\nI.\nDefendant assigns as error the court\u2019s denial of his motion to suppress the documentary evidence that agents of the State Bureau of Investigation obtained from Elnora Whetsell prior to the issuance of search warrants. Defendant contends that when Mrs. Whetsell, without a warrant, handed over copies of his business and personal records to the State that she was acting as an agent of the State and thereby violated his right to be free from unreasonable searches and seizures under the fourth and fourteenth amendments to the United States Constitution. We hold that Mrs. Whetsell was not acting as an agent of the State and that defendant\u2019s constitutional rights were not violated.\nWhen a private party has engaged in a search and has seized property or information, the protections of the fourth amendment apply only if the private party \u201cin light of all the circumstances of the case, must be regarded as having acted as an \u2018instrument\u2019 or agent of the State.\u201d Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971). Once a private search has been completed, subsequent involvement of government agents does not transform the original intrusion into a governmental search. United States v. Sherwin, 539 F. 2d 1, 6 (9th Cir. 1976). Mere acceptance by the government of materials obtained in a private search is not a seizure so long as the materials are voluntarily relinquished to the government. Coolidge, 403 U.S. at 488-89; United States v. Ziperstein, 601 F. 2d 281, 289 (7th Cir. 1979), cert. denied, 444 U.S. 1031 (1980); Sherwin, 539 F. 2d at 7-8. The fact that private parties are subject to forces which encourage them to aid law enforcement officials does not alone render their actions involuntary. Sherwin, 539 F. 2d at 8.\nThe trial court found as a fact that Mrs. Whetsell acted entirely on her own and for the purpose of protecting herself when she made the copies of defendant\u2019s records that were later turned over to the S.B.I. This finding is supported by competent evidence and is binding on appeal. State v. Chamberlain, 307 N.C. 130, 143, 297 S.E. 2d 540, 548 (1982). Defendant does not challenge this finding, but argues that Mrs. Whetsell did not act voluntarily when she turned the records over to the State because she had intended to give the records to the State only if that was necessary to protect herself from charges of wrongdoing. Defendant further argues that the records were given in exchange for a grant of immunity from prosecution by the district attorney which made Mrs. Whetsell an instrument of the State. An examination of the facts shows that Mrs. Whetsell was not an agent of the State and that her act of turning the copied records over to the S.B.I. was wholly voluntary.\nMrs. Whetsell had expressed her concerns about defendant\u2019s conduct to his law partners, Robert Rice and John Edwards, on a number of occasions. In the summer of 1982 she had twice attempted to bring the matter to Judge Bruce\u2019s attention. When Judge Bruce called her on 21 September 1982 she did not hesitate to inform him of the information she had and willingly attended a meeting with him, Robert Rice and John Edwards on 26 September 1982. Mrs. Whetsell testified that Judge Bruce indicated that he had a duty to report what he knew about defendant\u2019s conduct and that she as well as the others present at the meeting had agreed. Following their meeting with the district attorney on 27 September 1982, defendant\u2019s partners and Judge Bruce stopped at Mrs. Whetsell\u2019s house, informed her that a meeting with the district attorney and S.B.I. agents had been scheduled for 28 September 1982 and told her to attend. It was at that time that Mrs. Whetsell told them about the records she had copied. Mrs. Whetsell also expressed to Judge Bruce and defendant\u2019s partners her fear that she might be held liable for the discrepancies in the trust account records. At the start of the meeting of 28 September 1982 the district attorney granted Mrs. Whetsell immunity from prosecution. She then turned the copied records over to the district attorney. In the days before the search of the offices of Kornegay and Rice, P.A. Mrs. Whetsell met with the S.B.I. agents a number of times to interpret records for the agents and to inform them of where the originals were kept in defendant\u2019s offices. She also prepared a detailed handwritten statement.\nThese facts fully support the trial court\u2019s finding that Mrs. Whetsell was not coerced into giving her copies of defendant\u2019s records to the State. She volunteered information to John Edwards and Robert Rice about irregularities and acquiesced in the decision of Rice, Edwards and Judge Bruce to report their suspicions to the authorities. Obviously this act made it probable that her role as bookkeeper would be investigated. She had made the copies to protect herself, and once suspicions had been raised about the disposition of funds in the trust account, showing the records to the district attorney and explaining them was simply a logical extension of her original purpose in making the records. There is no evidence that Mrs. Whetsell was coerced into meeting with the district attorney or forced to turn over her records. The mere fact that she was given immunity from prosecution does not indicate coercion where there is no evidence that she was charged or would be charged with a crime. Mrs. Whetsell may have hoped that she would obtain a grant of immunity by cooperating with the district attorney, but this alone does not render her actions involuntary. See United States v. Sherwin, 539 F. 2d at 7, 8. The copied records given by Mrs. Whetsell to the State were not obtained through an unreasonable search and seizure conducted by the State or its agents and were properly admitted into evidence.\nWe note that Mrs. Whetsell continued to make copies of defendant\u2019s records after her meeting with the district attorney and the S.B.I. agents and later turned these copies over to the State. As the State did not use these copied records at trial or rely on them in its application for a search warrant, we do not deem it necessary to rule on whether or not Mrs. Whetsell acted as an agent of the State in procuring them.\nLastly, defendant contends that subsequent to her meeting with the district attorney Mrs. Whetsell had the Kenansville branch of the firm mail originals of check stubs to the Mount Olive office so that they would be available for seizure by officers executing the search warrant on 11 October 1982. Defendant relies on the fact that the envelope in which the stubs were found was postmarked 6 October 1982. However, Mrs. Whetsell testified that she requested the check stubs solely for the purpose of balancing her books and that the stubs, which were already in the Mount Olive office, may have been placed in a different envelope than they originally came in while she was balancing her books. In any case, the date on which the stubs were mailed to the Mount Olive office is irrelevant. The Kenansville office was searched at the same time as the Mount Olive office so that discovery of the stubs was inevitable. See Nix v. Williams, \u2014 U.S. \u2014, 104 S.Ct. 2501, 2510-11 (1984).\nII.\nDefendant next assigns as error the trial court\u2019s denial of his motion to suppress evidence obtained through the execution of search warrants issued to Wayne County and to Wayne and Duplin Counties jointly on 11 October 1982. He argues that the warrants were not supported by showings of probable cause that any particular crime had been committed. He also contends that the warrants are fatally defective because they do not sufficiently specify the property to be seized or the crimes to which the property relates. After a careful review of the warrants and the documents attached to them, we hold that the warrants are sufficiently specific and that the applications for issuance of the warrants disclose probable cause to believe that the particular crimes listed had been committed by defendant.\nA.\nAn affidavit is sufficient to establish probable cause if it \u201csupplies reasonable cause to believe that the proposed search for evidence of the commission of the designated criminal offense will reveal the presence upon the described premises of the objects sought and that they will aid in apprehension or conviction of the offender.\u201d State v. Reddick, 291 N.C. 399, 406, 230 S.E. 2d 506, 511 (1976) (quoting State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971), cert. denied, 414 U.S. 874 (1973)). When the facts as set forth in the supporting affidavit would lead a reasonable man of prudence and discretion to believe that the offense charged had been committed, there is probable cause sufficient to support the issuance of a search warrant. State v. Campbell, 282 N.C. 125, 129, 191 S.E. 2d 752, 755 (1972).\nThe search warrants in question direct the seizure of various records tending to show that money was obtained with a fraudulent intent from the trust account of Kornegay, Rice and Edwards, P.A. The records were also pertinent to show that defendant had obtained money from Estelle Sutton by false pretense and had embezzled funds from Estelle Sutton, and, or Kornegay, Rice and Edwards, P.A. While defendant was not named in the portion of the affidavit charging the offenses, other portions of the affidavit make it clear that defendant is the one accused of committing the offenses.\nDefendant\u2019s position that there was insufficient evidence in the affidavit to show probable cause to believe that he had committed the offenses charged is untenable. The affidavit discloses that Mrs. Whetsell, Robert Rice, Judge Bruce and John Edwards had over a period of years, beginning in the fall of 1976, noticed numerous instances of defendant\u2019s improper handling of trust accounts of clients and funds of the professional association. Their examination of the firm\u2019s books revealed that defendant had withdrawn funds from trust accounts and from the firm\u2019s operating account without authorization in order to pay his creditors and had deposited fees generated by the firm into his personal account. On several occasions Mrs. Whetsell recounted having written checks drawn on Kornegay, Rice and Edwards, P.A. to defendant\u2019s creditors. Mrs. Whetsell and John Edwards were both aware that defendant, who had defended Estelle Sutton in a wrongful death suit, had advised her that the suit had been settled for $125,000 when in fact the settlement was for $104,000. Both had seen an unsigned copy of a letter dated 1 June 1982 from George R. Kornegay, Jr. to Estelle Sutton stating that the suit had been settled for $125,000. Mrs. Whetsell noted that Estelle Sutton paid $125,000 to Kornegay, Rice and Edwards, P.A. and that only $104,000 was paid to the estate of Roland H. Seals while defendant transferred $21,000 from the firm\u2019s trust account to the firm\u2019s operating account. This appears to have been done to make up a deficit of $21,500 in the operating account resulting from earlier transactions of the defendant. Mrs. Whetsell also stated that $6,000 paid to defendant by Estelle Sutton for legal services was deposited in defendant\u2019s personal account rather than the firm\u2019s operating account. The payment by Mrs. Sutton of $125,000 according to the terms of the letter and the fact that defendant only paid out $104,000 while transferring $21,000 to the firm\u2019s operating account is sufficient to establish probable cause to believe that defendant had informed Mrs. Sutton that the case was being settled for $125,000 in order to obtain $21,000 by false pretense. Mrs. Whetsell, Robert Rice, John Edwards, and to a lesser extent, Judge Bruce, all had access to documents concerning defendant\u2019s financial dealings. The information obtained from each individual source tends to corroborate the others and when added to Mrs. Whetsell\u2019s copies of defendant\u2019s records is sufficient to establish the basis of knowledge and the veracity of Whetsell, Rice, Edwards and Bruce. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983). Any reasonable and prudent person faced with this evidence would have ample reason to conclude that a search of the records of Kornegay and Rice, P.A. and defendant\u2019s personal records would reveal that defendant had fraudulently misappropriated corporate funds, embezzled trust account funds and obtained money from Estelle Sutton by false pretense or embezzlement.\nDefendant notes that the portion of the affidavit attached to the warrant issued to Wayne County directing the seizure of the law firm\u2019s savings account passbook on the account maintained at Southern Bank and Trust Company does not state how this item relates to a criminal offense or how its seizure will aid in the apprehension or conviction of anyone in connection with a criminal offense. Therefore, defendant argues that the passbook was not properly subject to seizure.\nIn making this argument defendant overlooks the statement in the affidavit attached to the warrant that Mrs. Whetsell knew that $100,000 had been taken from the trust account of Hope W. Wiggins and deposited in the savings account maintained by Kornegay, Rice and Edwards, P.A. at the Southern Bank and Trust Company in Mount Olive. The interest received on these funds for a three month period was retained in the firm\u2019s savings account. Obviously, this passbook would tend to show that defendant had fraudulently conv\u00e9rted or embezzled the interest on the $100,000 from Hope W. Wiggins and so was properly subject to seizure. It is immaterial that the statements charging a specific offense and the facts establishing probable cause were not included in the particular portion of the affidavit designating the passbook as an item to be seized. The affidavit is to be considered as a whole in determining whether a specific offense was charged and whether probable cause has been shown to believe that seizure of the item would aid in the conviction of the offender. It is the better practice in drafting an affidavit to be used as part of a warrant to list together the crimes charged and the facts establishing probable cause. The affidavit and warrants before us nonetheless are sufficient as written to meet the requirements of the law.\nB.\nWarrants must \u201cparticularly describ[e] the place to be searched, and the persons or things to be seized.\u201d U.S. Const, amend. IV. Warrants which do not specify items to be searched for or persons to be arrested and which are not supported by showings of probable cause that a particular crime has been committed are general warrants banned by the fourth amendment to the United States Constitution and article I, section 20 of the North Carolina Constitution. A warrant describes items with sufficient particularity when it enables the officer executing the warrant reasonably to ascertain and identify the items to be seized. United States v. Wuagneux, 683 F. 2d 1343 (11th Cir. 1982), cert. denied, \u2014 U.S. \u2014, 104 S.Ct. 69 (1983). However, the degree to which a warrant must particularly describe the items to be seized depends on the nature of the items. Id. at 1349. A description of property is sufficient when it is as specific as the circumstances and nature of the activity that is under investigation permit. Id. \u201cThe complexity of an illegal scheme may not be used as a shield to avoid detection when the State has demonstrated probable cause to believe that a crime has been committed and probable cause to believe that evidence of this crime is in the suspect\u2019s possession.\u201d Andresen v. Maryland, 427 U.S. 463, 480 n. 10 (1976). When complex white-collar crimes are under investigation it is often necessary for the State to assemble a \u201cpaper puzzle\u201d from a mass of evidence. Id. In dealing with such a case the courts must give due consideration to the difficulty faced by the State in particularly describing each item of evidence sought and its relation to a specific crime. See Andresen, 427 U.S. 463; Wuagneux, 683 F. 2d 1343. In cases involving a complex scheme and numerous records the investigators executing a search warrant will have to exercise some discretion in separating innocuous material from incriminating evidence. State v. Louchheim, 36 N.C. App. 271, 279, 244 S.E. 2d 195, 201 (1978), aff'd, 296 N.C. 314, 250 S.E. 2d 630, cert. denied, 444 U.S. 836 (1979). This is especially true when the State is aware that certain business records relating to a crime exist but cannot give their precise titles or quantity. See United States v. Zanche, 541 F. Supp. 207, 209-10 (W.D.N.Y. 1982). In such cases the fourth amendment does not require that the warrant enumerate each individual paper, id. at 210, and we do not interpret article I, section 20 of the North Carolina Constitution to require more particularity in warrants than does the fourth amendment as applied to the states through the fourteenth amendment.\nThe affidavit of S.B.I. Agent Curtis L. Ellis is attached to both search warrants. The only difference in the two copies of the affidavit concern the identity of the place to be searched and the items to be seized. The Wayne County warrant directs the seizure of certain items from the offices of Kornegay and Rice, P.A. while the warrant issued to Wayne and Duplin Counties jointly concerns items located in the Kenansville office of the firm. Defendant contends that the warrants are general warrants because the search warrant forms issued by the superior court do not themselves describe the place to be searched or property to be seized but refer to the attached warrant applications. Defendant argues that the applications are not part of the warrants because the warrants do not state that the applications are incorporated by reference. This argument is without merit. Each warrant clearly states that the location of the place to be searched and the descriptions of the items to be seized are set forth in the application attached to it. It is not necessary that the warrants use the magic words \u201cincorporated by reference\u201d in order to make the attached application a part of the warrants. The clear import of the language used in the warrants is that the attached applications are part of the warrants. Search warrants are presumed to be regular when irregularity does not appear on the face of the record. State v. Spillars, 280 N.C. 341, 350, 185 S.E. 2d 881, 887 (1972). Defendant has offered no evidence to show that the applications were not in fact attached to the warrants and therefore has not rebutted the presumption of the warrants\u2019 regularity. Id.\nDefendant next asserts that when the search warrant applications are viewed as part of the warrants, the warrants still fail to describe particularly the property to be seized and in effect authorize the State to seize any type of record which may prove helpful. After examining the warrants and supporting affidavits, we hold that the warrants are sufficiently particular to meet the requirements of the fourth amendment and article I, section 20 of the North Carolina Constitution.\nIt is true that in several places the warrants direct the seizure of all checkbooks, cancelled checks, deposit slips, bank statements, trust account receipts, check stubs, books and papers, etc. which would tend to show a fraudulent intent or any elements of the crime of false pretense or embezzlement. In this case we hold that the description by the State of the items to be seized was as specific as the circumstances and nature of defendant\u2019s activities permitted. United States v. Wuagneux, 683 F. 2d 1343, 1349.\nIn the course of his law practice, defendant handled money for many clients and generated voluminous records. Many of the crimes with which defendant was charged were accomplished by numerous transfers of monies between the trust account of Kornegay, Rice and Edwards, P.A., defendant\u2019s personal account and the operating account of the professional association. Defendant\u2019s act of defrauding Kornegay, Rice and Edwards, P.A. was accomplished by his deposit of legal fees generated by the firm into his own account. In many instances the State was only aware that funds had been diverted from client trust accounts or had not been deposited in the firm\u2019s operating account. While the record is silent on this point we think it unlikely that Mrs. Whetsell, defendant\u2019s bookkeeper, had a photographic memory and, it is clear that she did not copy every document in defendant\u2019s accounting records. That being the case, it is unreasonable to believe that she, Judge Bruce, Robert Rice, or John Edwards could particularly identify every document or writing which would tend to show defendant\u2019s guilt. It is too much to expect the State to have fully charted defendant\u2019s tortuous trail of financial misdealings until his records had been secured for inspection. Otherwise, defendant would be able to shield himself behind the complexity of his schemes. See Andresen v. Maryland, 427 U.S. 463. The warrants and applications show the rough outline of defendant\u2019s activities which is all that can be reasonably expected from the State in a case of this nature. The fourth amendment and article I, section 20 of the North Carolina Constitution require no more.\nC.\nDefendant contends that even if the warrants are technically correct they were improperly issued for other reasons.\nFirst, defendant argues that certain copied records attached to the search warrant applications were obtained in violation of defendant\u2019s right to be free from unreasonable searches and seizures, rendering the evidence seized by execution of the search warrants inadmissible as being fruit of the poisonous tree. Inasmuch as we have already held that the records copied by Mrs. Whetsell were not obtained through an unreasonable search and seizure by the State or its agents defendant\u2019s argument is without merit.\nSecond, defendant argues that the trial court erred in denying his motion to quash the search warrants on the ground that Emergency Judge Fountain had no authority to issue them. Defendant does not dispute the trial court\u2019s finding of fact that Judge Fountain had been duly assigned, pursuant to N.C.G.S. \u00a7 7A-46, to hold a special session of the Superior Court of Wayne County on 11 October 1982.\nAn emergency judge duly assigned to hold the courts of a county or judicial district has the same powers in the district in open court and in chambers as the resident judge or any judge regularly assigned to hold the courts of the district would have, but his jurisdiction in chambers extends only until the session is adjourned or the session expires by operation of law, whichever is later.\nN.C. Gen. Stat. \u00a7 7A-48 (1981). Defendant attacks Judge Fountain\u2019s authority to issue the warrants on the basis that the session of court had not begun because Judge Fountain had not opened court at the time he issued the warrants in chambers.\nThere is a presumption of regularity accorded the official acts of public officers. State v. Watts, 289 N.C. 445, 449, 222 S.E. 2d 389, 391 (1976). An appellate court will not assume error when none appears in the record on appeal, State v. Phifer, 290 N.C. 203, 212, 225 S.E. 2d 786, 792 (1976), cert. denied, 429 U.S. 1123 (1977), and the burden is on appellant to show error, In re Moore, 306 N.C. 394, 403, 293 S.E. 2d 127, 132 (1982).\nAt trial the State produced evidence tending to show that Judge Fountain had opened court prior to issuing the search warrants. District Attorney Donald Jacobs testified that Judge Fountain came by his office on 11 October 1982, and stated that he was going upstairs to open the court. The Clerk of Superior Court for Wayne County testified that it was his impression that Judge Fountain had opened the court. Against the presumption of regularity and this evidence, defendant only offered evidence to the effect that no one was seen in the courtroom, no files were prepared to be sent to court by the clerk\u2019s office, Judge Fountain did not direct anyone to make notes of what transpired in court, and all proceedings occurred in Judge Fountain\u2019s chambers. Defendant produced no witnesses who could affirmatively state that Judge Fountain did not open court. This evidence is clearly insufficient to rebut the presumption of regularity and show that Judge Fountain did not open the session of court before issuing the warrants. Defendant\u2019s hypertechnical argument that Judge Fountain did not have the power to issue the warrants is without merit.\nLastly, in a related matter, defendant contends that the trial court erred in failing to suppress evidence obtained through use of orders for examination of records of Kornegay and Rice, P.A. directed to the Bank of North Carolina, N.A., Kenansville, North Carolina and Southern Bank & Trust Company, Inc., Mount Olive, North Carolina. Defendant concedes that the court had the authority to issue such orders under the rule of In Re Superior Court Order, 70 N.C. App. 63, 318 S.E. 2d 843 (1983), disc. rev. allowed, 312 N.C. 622, 323 S.E. 2d 926 (1984). Defendant\u2019s sole argument is that the orders were obtained through exploitation of prior unlawful searches and seizures so that any evidence obtained through them is fruit of the poisonous tree. Since we have already held that the State did not engage in any unlawful searches and seizures, defendant\u2019s argument is without merit.\nIII.\nCount XVII of the indictment charges defendant with the embezzlement of $14,525 from Kornegay, Rice and Edwards, P.A., John J. Stallings and Carolyn Stallings individually and as guardian ad litem for John J. Stallings, and count XXI charges him with the embezzlement of $6,000 from Kornegay, Rice and Edwards, P.A. Counts VIII and XXV charge defendant with malfeasance of a corporate agent by misapplying funds by embezzling the funds previously mentioned. Defendant contends that the trial court erred in denying his pretrial motion to require the State to elect between the counts of embezzlement and malfeasance of a corporate agent. Defendant argues that allowing the State to duplicate charges prejudiced him by leading the jury to believe that he had committed two separate and distinct offenses. After examining the statutes we hold that two separate and distinct offenses were charged in each case and that the trial court did not err in waiting until the close of all the evidence to require the State to make an election between the offenses of embezzlement and malfeasance of a corporate agent.\nIn order for the State to prove that a defendant has embezzled money in violation of N.C.G.S. \u00a7 14-90 it must establish three distinct elements:\n(1) that the defendant, being more than sixteen years of age, acted as an agent or fiduciary for his principal, (2) that he received money or valuable property of his principal in the course of his employment and by virtue of his fiduciary relationship, and (3) that he fraudulently or knowingly and willfully misapplied or converted to his own use such money or valuable property of his principal which he had received in his fiduciary capacity.\nState v. Pate, 40 N.C. App. 580, 583, 253 S.E. 2d 266, 269, cert. denied, 297 N.C. 616, 257 S.E. 2d 222 (1979). The offense of malfeasance of a corporate agent is more complex and is defined as follows:\n(a) If any president, director, cashier, teller, clerk or agent of any corporation shall embezzle, abstract or willfully misapply any of the moneys, funds or credits of the corporation, or shall, without authority from the directors, issue or put forth any certificate of deposit, draw any order or bill of exchange, make any acceptance, assign any note, bond, draft, bill of exchange, mortgage, judgment or decree, or make any false entry in any book, report or statement of the corporation with the intent in either case to injure or defraud or to deceive any person, or if any person shall aid and abet in the doing of any of these things, he shall be punished as a Class G felon.\n(b) For purposes of this section, \u201cperson\u201d means a natural person, association, consortium, corporation, body politic, partnership, or other group, entity, or organization.\nN.C. Gen. Stat. \u00a7 14-254 (1981).\nThe differences in the elements of these two offenses are significant: (1) A defendant charged with embezzlement must have received the property he embezzled in the course of his employment and by virtue of his fiduciary relationship with his principal. Under N.C.G.S. \u00a7 14-254 it is sufficient to show that a defendant as an agent or officer of a corporation abstracted or misapplied corporate funds. It need not be shown that he received such funds in the course of his employment. (2) A defendant charged with embezzlement must have intended to defraud his principal. By contrast, a defendant violates N.C.G.S. \u00a7 14-254 if he does any of the acts prohibited by the statute with an intent to defraud or deceive any person. (3) A defendant charged with embezzlement need not be an agent or fiduciary of a corporation. N.C.G.S. \u00a7 14-254 applies only to agents and officers of a corporation. (4) To be guilty of embezzlement a defendant must be sixteen or more years of age. There is no such age restriction in N.C.G.S. \u00a7 14-254. While not comprehensive, this list shows that the offenses in question are separate and distinct because each offense contains at least one element not found in the other. See generally, State v. Brady, 299 N.C. 547, 563, 264 S.E. 2d 66, 75 (1980); State v. Weaver, 306 N.C. 629, 295 S.E. 2d 375 (1982).\nWhen two separate and distinct offenses happen to arise out of the same course of conduct a defendant may be charged with more than one offense. State v. Ward, 301 N.C. 469, 476, 272 S.E. 2d 84, 88 (1980). In such cases it is proper for the trial court to defer its decision on the necessity for an election until evidence has been introduced. Id.; State v. Summrell, 282 N.C. 157, 173, 192 S.E. 2d 569, 579 (1972). Defendant\u2019s reliance on State v. Griffin, 239 N.C. 41, 79 S.E. 2d 230 (1953) is misplaced. That case held that the trial court should have granted defendant\u2019s pretrial motion to require the State to elect between a charge of larceny and a charge of embezzlement. The Court reasoned that both charges were based on the same act, and as a matter of law defendant could not be guilty of both by the same act, the definitions of the two crimes being mutually exclusive. Griffin, 239 N.C. at 45, 79 S.E. 2d at 233. On the other hand, it is possible for a defendant to be guilty of both embezzlement and malfeasance of a corporate agent by the same act. For that reason the rule of Griffin does not apply to this case, and the decision to defer ruling on defendant\u2019s motion until the close of all the evidence was within the sound discretion of the trial judge. For the same reason it was not error for the trial court in making its opening comments to the jury to inform them that defendant was charged with two counts of malfeasance of a corporate agent in addition to two counts of embezzlement.\nBefore the case went to the jury the trial court required the State to elect between counts XVII and XVIII and between counts XXI and XXV. The State elected to proceed on counts XVII and XXV and the trial court then dismissed counts XVIII and XXI. At that point defendant moved to dismiss counts XVII and XXV on the grounds of double jeopardy. When a defendant is charged in the same trial with separate offenses and each offense charged has an element different from any element of the other charged offense, considerations of double jeopardy do not arise. Brady, 299 N.C. at 563, 264 S.E. 2d at 75. The trial court properly denied defendant\u2019s motion to dismiss counts XVII and XXV and to declare a mistrial.\nIV.\nPrior to trial the trial court granted the State\u2019s motion to join the false pretense offense with the offenses of embezzlement and malfeasance of a corporate agent. Defendant assigns as error the granting of the State\u2019s motion and the denial of his motion to sever the false pretense offense.\n\u201cTwo or more offenses may be joined in one pleading or for trial when the offenses, . . . are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single plan or scheme.\u201d N.C. Gen. Stat. \u00a7 15A-926 (1983). The nature of the offense is a factor that may properly be considered in determining whether the acts or transactions on which the offenses are based were part of a single plan or scheme. State v. Effler, 309 N.C. 742, 751-52, 309 S.E. 2d 203, 209 (1983). \u201cMotions to join for trial offenses which have the necessary transactional connection under G.S. 15A-926 are addressed to the discretion of the trial court and, absent a showing of abuse of discretion, its ruling will not be disturbed on appeal.\u201d State v. Avery, 302 N.C. 517, 524, 276 S.E. 2d 699, 704 (1981).\nAfter examining the circumstances surrounding the three offenses we conclude that the trial judge did not abuse his discretion in joining the offenses for trial. The common thread connecting the crimes is defendant\u2019s shortage of ready cash in April of 1982. An installment payment was due on the property defendant had purchased from Ray Amon, and on or about the thirteenth of April defendant removed $14,525 of the money credited to Carolyn Stallings from the trust account of Kornegay, Rice and Edwards, P.A. in Kenansville to pay Mr. Amon. Apparently in need of a fresh infusion of cash, defendant deposited the $6,000 check Estelle Sutton had sent to Kornegay, Rice and Edwards, P.A. as payment for legal services rendered by the firm into his own account. Since defendant had previously deposited checks from Mrs. Sutton into his personal account which were intended to cover legal fees in the amounts of $5,500 and $10,000 respectively, the firm\u2019s operating account was short $21,500. According to Elnora Whetsell the firm at that point had insufficient funds to satisfy its salary and operating expenses in April. At that time, 27 April or 28 April 1982, defendant transferred the $21,000 remaining from the $125,000 Mrs. Sutton had paid him to settle her lawsuit into the general operating account of Kornegay, Rice and Edwards, P.A. The relationship between these transactions indicates that defendant\u2019s act of obtaining $21,000 from Estelle Sutton by false pretense was part and parcel of his scheme to embezzle funds from his law firm. This evidence is more than sufficient to support joinder of the offenses. Defendant\u2019s assignment of error is overruled.\nV.\nDefendant argues that the admission of testimony by John Edwards and Robert Rice that they had not authorized him to deposit legal fees generated by the corporation in his own account was error. Defendant contends that as sole shareholder of the corporation he had the right to dispose of assets of the corporation without the consent of Edwards and Rice who were only employees. He further argues that the trial court erred in allowing John Edwards to testify that he had not authorized defendant to deposit a check dated 10 December 1978 for $5,500 into defendant\u2019s personal account and drawn on Estelle Sutton\u2019s account on the basis that that check was not the subject of any charge for which defendant was brought to trial. We find these arguments unpersuasive.\nIf any president, director, cashier, teller, clerk or agent of any corporation shall embezzle, abstract or willfully misapply any of the moneys, funds or credits of the corporation, or shall, without authority from the directors, issue or put forth any certificate of deposit, draw any order or bill of exchange, make any acceptance, assign any note, bond, draft, bill of exchange, mortgage, judgment or decree, or make any false entry in any book, report or statement of the corporation with the intent in either case to injure or defraud or to deceive any person, or if any person shall aid and abet in the doing of any of these things, he shall be punished as a Class G felon.\nN.C. Gen. Stat. \u00a7 14-254(a) (1981) (emphasis added). Defendant\u2019s act of depositing $6,000 in legal fees in his own account rather than that of Kornegay, Rice and Edwards, P.A. is a clear violation of the statute. Defendant was a corporate officer who embezzled funds rightfully belonging to the corporation with the intent to deceive and defraud his associates, John Edwards and Robert Rice. Defendant, John Edwards and Robert Rice had agreed that all legal fees generated by them were property of the corporation and would be distributed on a pro rata basis. Defendant obviously intended to deceive them when he concealed the existence of legal fees due to the corporation. The fact that defendant owned all the stock of the corporation is irrelevant. \u201cSo long as the corporation is an entity and owns the money, and that money is withheld or taken and used for non-corporate purposes, . . . there is no escape from the conclusion that there has been a wrongful and intentional misapplication of corporate funds. . . . State v. Stites, 5 Utah 2d 101, 104, 297 P. 2d 227, 229 (1956) (defendant owned all but four shares of the corporation\u2019s stock). Having organized a corporation and conducted his business through it in order to obtain the benefits and protections of the corporate form defendant may not now ignore the corporate entity and treat corporate funds as his own. State v. Harris, 147 Conn. 589, 595, 164 A. 2d 399, 402 (1960). If the stockholders may legally convert all of a corporation\u2019s assets to their own use those dealing with the corporation on the faith of its property might be irretrievably injured. Taylor v. Commonwealth, 119 Ky. 731, 747, 75 S.W. 244, 249 (1903) (all stockholders concurred in the misappropriation of corporate funds). The truth of this observation is borne out in the case at bar by the fact that at one point defendant\u2019s act of appropriating legal fees generated by the corporation left the corporation with insufficient funds to meet its obligations. Only a timely infusion of money obtained from Estelle Sutton by false pretense covered this deficit. Section 14-254(a) of the North Carolina General Statutes makes no exception for corporate agents or officers who own the entire stock of a corporation, and such persons violate the statute if they embezzle or misapply corporate funds with the intent to injure, defraud, or deceive another.\nWe next turn to defendant\u2019s argument that the trial court improperly admitted testimony of John Edwards concerning a 10 December 1978 check for legal services deposited by defendant into defendant\u2019s own account. It is true that the check was not the subject of any charge against defendant and defendant\u2019s appropriation of it is too remote in time from the crimes charged to be admissible as evidence of motive, opportunity, intent, preparation, plan, etc. See N.C.R. Evid. 404(b); State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954). In light of the fact that John Edwards and Robert Rice gave identical testimony concerning other checks that were properly admitted into evidence, we hold that admission of the testimony concerning the 10 December 1978 check was harmless error.\nVI.\nDefendant moved pursuant to N.C.G.S. \u00a7 15A-1227 to dismiss count XVII of the indictment charging him with the embezzlement of $14,500 \u201cbelonging to Kornegay, Rice and Edwards, P.A. and Carolyn Stallings, individually and as guardian ad litem for John J. Stallings, and John J. Stallings, incompetent,\u201d on the basis that there is a fatal variance between the allegations charged in the indictment and the evidence offered by the State. Defendant points out that William Sturges, a member of the Charlotte law firm representing Mrs. Stallings, testified that Mrs. Stallings was not a fiduciary or general guardian of John J. Stallings and that defendant as local counsel negotiated the $30,000 settlement of her case with State Farm Insurance Company and deposited the funds in the trust account of Kornegay, Rice and Edwards, P.A. Defendant argues that this evidence demonstrates that he did not appropriate any funds belonging to Carolyn Stallings, either individually or as guardian ad litem of John J. Stallings. Defendant is apparently relying on the rule that a guardian ad litem has no authority to receive money for a litigant or administer his property. Hagins v. Redevelopment Comm., 275 N.C. 90, 101, 165 S.E. 2d 490, 497 (1969). While defendant\u2019s recital of the facts is correct, his application of the law to the facts is flawed.\nIn an indictment for larceny the State is not limited to alleging ownership in the legal owner but may allege ownership in anyone else who has a special property interest recognized in law. State v. Greene, 289 N.C. 578, 584, 223 S.E. 2d 365, 369 (1976). The same rule may properly be applied to indictments alleging embezzlement or misappropriation of the property of another. In this case Carolyn Stallings, as guardian ad litem, received money for John J. Stallings, incompetent, endorsed the checks from State Farm Insurance Company, and authorized their deposit in the trust account of Kornegay, Rice and Edwards, P.A. Mrs. Stallings had been paying her husband\u2019s bills, which would give her a claim for reimbursement from the funds deposited in the trust account, and was a \u201cperson in loco parentis\u201d as defined by N.C.G.S. \u00a7 35-1.7(20). Also, the funds in question were paid by State Farm Insurance Company, the insurer of the Strickland automobile, pursuant to the medical payment and uninsured motorist\u2019s provision of the policy. These payments were made at a time when Mrs. Stallings was acting pursuant to a power of attorney from her husband because of his incapacity. These facts are sufficient to create in Carolyn Stallings a special property interest in the $30,000 deposited in the trust account of Kornegay, Rice and Edwards, P.A. The fact that Mrs. Stallings had no interest in the property as guardian ad litem is irrelevant since that allegation in the indictment did not go to prove an essential element of the crime. \u201cAllegations beyond the essential elements of the crime sought to be charged are irrelevant and may be treated as surplusage.\u201d State v. Taylor, 280 N.C. 273, 276, 185 S.E. 2d 677, 680 (1972). The allegation in the bill of indictment that Mrs. Stallings was an owner of the $30,000 was supported by the evidence. There was no fatal variance between the allegation and proof, and the trial court properly denied defendant\u2019s motion to dismiss count XVII.\nDefendant also argues in regard to count XXII that there is a fatal variance between the indictment and the evidence and that the trial court incorrectly stated the charge set out in the indictment in its instructions to the jury. Defendant\u2019s argument that the trial court\u2019s charge to the jury incorrectly characterizes the charge of obtaining money by false pretense is without basis. The instructions merely paraphrase the language of the indictment and are sufficient to define the offense.\nCount XXII of the indictment alleges that the offense of obtaining $21,000 by false pretense took place on or about 27 or 28 April 1982. Defendant contends that the State\u2019s proof varies fatally from the indictment because the State has failed to prove when defendant settled the Seals suit with the attorneys for the Seals estate.\nIn order to prove that defendant obtained the $21,000 from Estelle Sutton by false pretense the State must prove that on 27 April 1982 when defendant represented to Mrs. Sutton that the Seals suit had been settled for $125,000 that this representation was false, that it was calculated and intended to deceive, that Mrs. Sutton was deceived, and that defendant thereby obtained $21,000 from Estelle Sutton. See State v. Cronin, 299 N.C. 229, 262 S.E. 2d 277 (1980). It is undisputed that this representation was false, that Mrs. Sutton was deceived by it and that defendant thereby obtained $21,000 from Estelle Sutton. The sole question is whether defendant\u2019s statement that the suit had been settled for $125,000 was calculated and intended to deceive Mrs. Sutton. An examination of the evidence demonstrates that it was.\nDefendant and Joseph Marion, attorney for the Seals estate, agreed to the final settlement of $104,000 between 20 and 30 April 1982. On 27 April 1982 defendant advised Mrs. Sutton that the Seals suit had been settled for $125,000, and she delivered to him that day a cashier\u2019s check made out to him in the amount of $125,000. On 28 April 1982 defendant caused a check to be issued to Joseph Marion, the attorney for the Seals estate, in the amount of $104,000. Defendant delivered this check to Mr. Marion on 3 May 1982 who accepted it in settlement of the case. All the evidence indicates that $104,000 was the only figure ever agreed on by the parties to settle the Seals suit. Based on this evidence the jury could reasonably infer that the amount of $104,000 had in fact been agreed to on or before 27 April 1982 and that defendant\u2019s misrepresentation as to the amount of the settlement had been calculated and intended to deceive Mrs. Sutton. The trial court properly denied defendant\u2019s motion to dismiss count XXII of the indictment.\nLastly, defendant contends that the trial court erred in denying his motion to dismiss count XXV of the indictment charging him with malfeasance of a corporate agent in violation of N.C.G.S. \u00a7 14-254(a) because there is a fatal variance between the indictment and the proof. It is defendant\u2019s position that he did not take any monies of Kornegay, Rice and Edwards, P.A. without the consent of the corporation because he is the sole stockholder and officer of the corporation. We have already held that a person owning all the stock of a corporation violates the law by diverting funds from the corporation in order to injure or deceive any person and we need not consider this issue again. Pursuant to the oral agreement of defendant, Robert Rice, and John Edwards, all legal fees generated by them were the property of the corporation, and defendant could not treat them as his own. This assignment of error is overruled.\nVII.\nWe next consider defendant\u2019s argument that the trial court erred in denying his request for certain instructions in regard to the charges of embezzlement, malfeasance of a corporate agent through misapplying funds, and obtaining money by false pretense. We have reviewed the instructions given by the trial court as well as defendant\u2019s proposed instructions and hold that the trial court did not err in denying defendant\u2019s request for instructions.\nAt trial defendant requested the court to instruct the jury that it was to disregard any evidence concerning a fee arrangement between John Edwards, Robert Rice and defendant and any evidence that Edwards or Rice were entitled to shares of stock in the corporation in evaluating the counts of embezzlement and malfeasance of a corporate agent. Defendant contends that this evidence would only be relevant to a charge of appropriation of partnership funds by a partner to personal use in violation of N.C.G.S. \u00a7 14-97. We disagree.\nEvidence of the agreement that all legal fees generated by defendant, Edwards and Rice would be property of the corporation to be distributed pro rata was necessary to show what revenue the corporation was entitled to. In order for defendant to be guilty of misappropriating legal fees it was necessary to prove that the corporation was entitled to legal fees generated by the members of the firm. Likewise, it was proper for the jury to consider the evidence that Rice and Edwards were entitled to shares of the corporate stock because it was relevant to the determination of whether defendant had acted with criminal intent to defraud the corporation and Edwards and Rice by the diversion of legal fees and the embezzlement of trust account funds.\nDefendant also argues that the trial court erred in failing to instruct the jury that\n[t]he conversion of funds by a person who has been entrusted with them becomes criminal as an embezzlement only by reason of his corrupt intent, and it is as necessary for the State to establish the intent as a fact independent of the conversion as it is to prove the bad intent in a prosecution for larceny as a fact apart from the taking.\nThis proposed charge is taken from the case of State v. Cohoon, 206 N.C. 388, 393, 174 S.E. 91, 93 (1934), and is a correct statement of the law. However, Cohoon does not indicate that this instruction is mandatory in cases where defendant is charged with embezzlement or offenses based on an embezzlement. In instructing on the charges of embezzlement of funds and malfeasance of a corporate agent by misapplying funds the trial judge instructed the jury that the State must prove that \u201cdefendant wilfully, fraudulently and dishonestly used the money for some purpose other than that for which he received it.\u201d This instruction is consistent with the definition of embezzlement set forth in N.C.P.I. \u2014 Crim. 218.10 and is adequate to inform the jury that they must find that defendant acted with a corrupt intent when he converted the monies in question. The trial judge did not err in refusing to give the requested instruction.\nIn regard to the charge of obtaining money by false pretense defendant requested the following instructions: (1) that the State must establish beyond a reasonable doubt that defendant had settled Mrs. Sutton\u2019s case with the attorney for Mrs. Seals for $104,000 on or about 14 April 1982; (2) that the State must establish beyond a reasonable doubt that defendant had settled Mrs. Sutton\u2019s case with the attorney for Mrs. Seals on or before 27 April 1982 when Mrs. Sutton delivered the check for $125,000 to defendant; and (3) that if the check for $125,000 was obtained from Mrs. Sutton before the settlement of the case, there was no false pretense. Defendant assigns as error the trial court\u2019s failure to give these instructions.\nIt clearly was not error for the trial court to omit defendant\u2019s first requested instruction in its charge to the jury. The fact that the indictment alleged that defendant settled Mrs. Sutton\u2019s case with the attorneys for the Seals estate on or about 14 April 1982 is immaterial because it is not an essential element of the crime charged. See Taylor, 280 N.C. at 276, 185 S.E. 2d at 680. In this case it was only necessary that the State prove that defendant had settled the Seals case on or before 27 April 1982, and the allegation that the settlement was completed on 14 April 1982 is mere surplusage. For that reason no fatal variance between the indictment and the proof would occur if the jury found that the settlement was completed on or before 27 April 1982 rather than on 14 April 1982.\nDefendant\u2019s proposed instructions two and three for count XXII in substance state that the jury must find defendant innocent of obtaining $21,000 from Estelle Sutton by false pretense unless the State proves that defendant had already settled the Seals case for $104,000 when he received the check for $125,000 from Mrs. Sutton on 27 April 1982. After instructing the jury on the elements of the charge of obtaining money by false pretense, the trial judge proceeded to deliver his final mandate and, among other things, charged the jury that they must find beyond a reasonable doubt that defendant had reached a settlement of the Seals suit in the amount of $104,000 before he told Mrs. Sutton that the suit had been settled for $125,000 and that she should bring him a check in that amount. This is the essence of what defendant requested in his prayer for instruction and is all that he was entitled to.\nIn his next three assignments of error defendant argues that the trial court failed to charge the jury on the offenses contained in the indictment. These assignments of error are baseless.\nDefendant contends that the trial court\u2019s instruction on count XVII varied from the bill of indictment and the evidence offered by the State in regard to the ownership of the embezzled funds. Since defendant did not object to this portion of the jury instructions, he may not now assign it as error. N.C. R. App. P. 10(b)(2).\nAfter the trial court had completed its instructions to the jury, defendant requested that the instructions on count XXII be changed by removing the reference to John J. and Carolyn Stallings as owners of the embezzled funds and instructing the jury that it find defendant guilty if it found that he had embezzled funds of Kornegay, Rice and Edwards, P.A. Such an instruction would have been at variance with the facts and the indictment and was clearly erroneous. The trial court properly denied defendant\u2019s request to modify the instructions.\nDefendant also argues that there was a fatal variance between the allegations and the proof regarding counts XXII and XXV and the court\u2019s instructions. \u201cIt is a rule of universal observance in the administration of criminal law that a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment.\u201d State v. Evans and State v. Britton and State v. Hairston, 279 N.C. 447, 452, 183 S.E. 2d 540, 544 (1971) (quoting State v. Jackson, 218 N.C. 373, 11 S.E. 2d 149 (1940)). \u201cThe allegation and proof must correspond.\u201d Jackson, 218 N.C. at 376, 11 S.E. 2d at 151. In regard to counts XXII and XXV, a comparison between the evidence and the language of the indictment and the instructions on these counts reveals that they are entirely consistent with each other. There is no fatal variance between the indictment, the jury instruction, and the proof. These assignments of error are overruled.\nIn his remaining assignments of error that are not merely formal, defendant argues that it was error for the trial court to admit into evidence documents given to the State by Elnora Whetsell and testimony relating to those documents on the ground that the documents were obtained by the State through an unconstitutional search and seizure. Since we have already held that the documents taken by Mrs. Whetsell were not seized by the State in violation of defendant\u2019s constitutional rights, these assignments of error are without merit and are overruled.\nDefendant also assigns as error the trial judge\u2019s actions of signing and entering the judgments against him, disbarring him and ordering him to surrender his law license. These assignments of error are purely formal and are without merit.\nDefendant received a fair trial free of prejudicial error.\nNo error.\nJustice VAUGHN did not participate in the consideration or decision of this case.", "type": "majority", "author": "BRANCH, Chief Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Donald W. Stephens, Special Deputy Attorney General and Christopher P. Brewer, Assistant Attorney General, for the State.", "Hulse & Hulse, by Herbert B. Hulse and Duke & Brown, by John E. Duke, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GEORGE R. KORNEGAY, JR.\nNo. 500PA84\n(Filed 27 February 1985)\n1. Searches and Seizures \u00a7 2\u2014 search by a private party\nWhen a private party has engaged in a search and has seized property or information, the protections of the Fourth Amendment apply only if the private party in light of all the circumstances of the case must be regarded as having acted as an instrument or agent of the State.\n2. Searches and Seizures \u00a7 2\u2014 private search \u2014 subsequent involvement of government agents\nOnce a private search has been completed, subsequent involvement of government agents does not transform the original intrusion into a governmental search, and mere acceptance by the government of materials obtained in a private search is not a seizure so long as the materials are voluntarily relinquished to the government.\n3. Searches and Seizures \u00a7 2\u2014 defendant\u2019s business records \u2014 copies furnished to State by secretary \u2014 no unreasonable search and seizure\nIn a prosecution of an attorney for embezzlement, false pretense and corporate malfeasance, a secretary in defendant\u2019s law office was not acting as an agent of the State when she handed over copies of defendant\u2019s business and personal records to the S.B.I. prior to the issuance of a search warrant, and the copied records were thus not obtained through an unreasonable search and seizure conducted by the State or its agents, where the trial court found that the secretary acted entirely on her own and for the purpose of protecting herself when she made the copies of defendant\u2019s records and that she voluntarily turned these records over to the S.B.I. and the district attorney. The mere fact that the secretary was given immunity from prosecution does not indicate that she was coerced into giving copies of the records to the State where there was no evidence that she was charged or would be charged with a crime.\n4. Searches and Seizures \u00a7 22\u2014 probable cause for search warrant\nWhen the facts as set forth in the supporting affidavit would lead a reasonable man of prudence and discretion to believe that the offense charged has been committed, there is probable cause sufficient to support the issuance of a search warrant.\n5. Searches and Seizures \u00a7 23\u2014 affidavit for search warrant \u2014 probable cause to believe crime committed\nAn affidavit was sufficient to establish probable cause to believe that a search of the records of a law firm and defendant\u2019s personal records would reveal that defendant had fraudulently misappropriated corporate funds of the law firm, embezzled trust account funds and obtained money from a client by false pretense or embezzlement.\n6. Searches and Seizures \u00a7 31\u2014 search warrant \u2014 item to be seized \u2014 facts establishing probable cause in another portion of warrant\nIt was immaterial that statements charging a specific offense and facts establishing probable cause were not included in the particular portion of an affidavit attached to a search warrant designating a law firm\u2019s savings account passbook as an item to be seized where other portions of the affidavit established probable cause to believe that the passbook would tend to show that defendant had fraudulently converted or embezzled the interest on $100,000 belonging to a client.\n7. Searches and Seizures \u00a7 31\u2014 search warrant \u2014 description of items to be seized\nWarrants which do not specify items to be searched for or persons to be arrested and which are not supported by showings of probable cause that a particular crime has been committed are general warrants banned by the Fourth Amendment to the U. S. Constitution and Art. I, \u00a7 20 of the N. C. Constitution.\n8. Searches and Seizures \u00a7 31\u2014 search warrant \u2014 description of items to be seized\nA warrant describes items with sufficient particularity when it enables the officer executing the warrant reasonably to ascertain and identify the items to be seized. However, the degree to which a warrant must particularly describe the items to be seized depends on the nature of the items, and a description of property is sufficient when it is as specific as the circumstances and nature of the activity that is under investigation permit.\n9. Searches and Seizures \u00a7 31\u2014 search warrant \u2014 description of items to be seized \u2014business records\nWhen the State is aware that certain business records relating to a crime exist but cannot give their precise titles or quantity, neither the Fourth Amendment of the U. S. Constitution nor Art. I, \u00a7 20 of the N. C. Constitution requires that the warrant enumerate each individual paper.\n10.Searches and Seizures \u00a7 30\u2014 search warrant \u2014 description of place and items \u2014 attached applications as part of warrants\nAlthough search warrants did not state specifically that the applications were incorporated by reference, applications attached to the warrants were a part thereof where each warrant clearly stated that the location of the place to be searched and the description of the items to be seized were set forth in the application attached to it.\n11. Searches and Seizures \u00a7 31\u2014 search warrant \u2014description of items to be seized\nDescription of items to be seized, including directions to seize all checkbooks, cancelled checks, deposit slips, bank statements, trust account receipts, check stubs, books and papers which would tend to show a fraudulent intent or any elements of the crime of false pretense or embezzlement, was as specific as the circumstances and nature of defendant attorney\u2019s activities permitted and was sufficiently particular to meet the requirements of the Fourth Amendment to the U. S. Constitution and Art. I, \u00a7 20 of the N. C. Constitution, where many of the crimes with which defendant was charged were accomplished by numerous transfers of monies between the trust account of a law firm, the law firm\u2019s operating account, and defendant\u2019s personal account, and in many instances the State was only aware that funds had been diverted from client trust accounts or had not been deposited in the firm\u2019s operating account.\n12. Judges \u00a7 3; Searches and Seizures \u00a7 28\u2014 search warrants \u2014issuance by emergency judge \u2014opening of court \u2014 presumption of regularity\nDefendant failed to show that search warrants were invalid on the ground that the emergency judge who signed them had not opened court at the time he issued the warrants in chambers since defendant\u2019s evidence that no one was seen in the courtroom, no files were prepared to be sent to court by the clerk\u2019s office, the judge did not direct anyone to make notes of what transpired in court, and all proceedings occurred in the judge\u2019s chambers was insufficient to overcome the presumption of regularity of the acts of public officials and testimony by the district attorney and the clerk of court tending to show that the judge had opened court prior to issuing the search warrants.\n13. Indictment and Warrant \u00a7 8.4\u2014 pretrial election between offenses not required\nCharges against defendant for embezzlement and for malfeasance of a corporate agent constituted charges of separate and distinct offenses although the same funds were involved in both cases, and the trial court did not err in waiting until the close of all the evidence to require the State to make an election between the two offenses. G.S. 14-90; G.S. 14-254.\n14. Criminal Law \u00a7 26.5\u2014 double jeopardy \u2014separate offenses \u2014different elements\nWhen a defendant is charged in the same trial with separate offenses and each offense charged has an element different from any element of the other charged offense, considerations of double jeopardy do not arise.\n15. Criminal Law \u00a7 92.4\u2014 consolidation of charges against defendant\nThe trial court did not abuse its discretion in granting the State\u2019s motion to join a false pretense charge against defendant attorney with charges against defendant for embezzlement of funds from his law firm and malfeasance of a corporate agent where the evidence showed that defendant\u2019s act of obtaining $21,000 from a client by false pretense was part of his scheme to embezzle funds from his law firm. G.S. 15A-926.\n16. Corporations \u00a7 15.1; Embezzlement \u00a7 1.1\u2014 malfeasance of corporate agent \u2014 attorney\u2019s depositing of legal fees in own account\nDefendant attorney\u2019s act of depositing legal fees in his own account rather than in the account of his law firm, a professional corporation, if done with the intent to injure, defraud or deceive another, was a violation of the malfeasance of corporate agents statute, G.S. 14-255(a), although defendant was the sole shareholder of the corporation, and associates in the law firm were properly permitted to testify that they had not authorized defendant to deposit legal fees generated by the corporation in his own account.\n17. Embezzlement \u00a7 4\u2014 indictment \u2014 ownership of embezzled property\nAn indictment alleging embezzlement or misappropriation of the property of another is not limited to alleging ownership in the legal owner but may allege ownership in anyone else who has a special property interest recognized in law.\n18. Embezzlement \u00a7 4\u2014 special property interest in embezzled funds \u2014 no fatal variance between indictment and evidence\nAn incompetent\u2019s wife had a special property interest in funds which had been recovered for the incompetent and deposited in a law firm\u2019s trust account so that there was no fatal variance between the evidence and an indictment charging defendant attorney with embezzlement of funds belonging to the wife \u201cindividually\u201d where the evidence showed that the wife, as guardian ad litem for the incompetent, endorsed checks from an insurance company and authorized their deposit in the trust account of defendant\u2019s law firm; the wife had been paying the incompetent\u2019s bills and thus had a claim for reimbursement from the trust account; the wife was a \u201cperson in loco parentis\u201d as defined by G.S. 35-1.7(20); and payments of the recovered funds were made at a time when the wife was acting pursuant to a power of attorney from her husband because of his incapacity. An allegation in the indictment that the funds belonged to the wife \u201cas guardian ad litem\u201d was irrelevant and will be treated as surplusage.\n19. False Pretense \u00a7 3.1\u2014 attorney obtaining money from client \u2014 sufficiency of evidence to support conviction\nThe evidence would support inferences that defendant attorney\u2019s misrepresentation to his client that a suit had been settled for $125,000 was calculated and intended to deceive the client and that the amount of $104,000 had been in fact agreed to on or before 27 April 1982 as alleged in the indictment so as to support defendant\u2019s conviction of obtaining $21,000 from his client by false pretense where the evidence tended to show: defendant and the attorney for the plaintiff in an action against defendant\u2019s client had agreed to a final settlement of $104,000 between 20 and 30 April 1982; on 27 April defendant advised his client that the suit had been settled for $125,000, and the client delivered to defendant that day a cashier\u2019s check made out to him for $125,000; on 28 April defendant caused a check to be issued to the attorney for the other party in an amount of $104,000 and delivered this check to the other attorney on 3 May; and $104,000 was the only figure ever agreed on by the attorneys to settle the suit against defendant\u2019s client.\n20. Embezzlement \u00a7 5; Corporations \u00a7 15.1\u2014 embezzlement from law firm \u2014 malfeasance of corporate agent \u2014 agreement by attorneys for sharing legal fees\u2014 attorneys\u2019 right to shares of corporate stock\nIn a prosecution of defendant attorney for embezzlement of funds of a professional corporation and malfeasance of a corporate agent by misapplying funds, evidence of an agreement that all legal fees generated by defendant and his two associates would be property of the corporation and distributed pro rata was relevant to show the revenue to which the corporation was entitled. Furthermore, evidence that defendant\u2019s two associates were entitled to shares of the corporate stock was relevant to the determination of whether defendant had acted with criminal intent to defraud the corporation and the two associates by his diversion of legal fees and embezzlement of trust account funds.\n21. Embezzlement \u00a7 6.1; Corporations \u00a7 15.1\u2014 embezzlement \u2014 malfeasance of corporate agent \u2014 instruction on corrupt intent\nIn a prosecution for embezzlement and malfeasance of a corporate agent by misapplying funds, the trial court\u2019s instruction that the State must prove that \u201cdefendant wilfully, fraudulently and dishonestly used the money for some purpose other than that for which he received it\u201d was adequate to inform the jury that they must find that defendant acted with a corrupt intent when he converted the monies in question, and the trial court did not err in refusing to give defendant\u2019s requested instruction on corrupt intent.\n22. False Pretense \u00a7 2\u2014 attorney\u2019s misrepresentation of case settlement \u2014 precise date of settlement mere surplusage\nIn a prosecution of defendant attorney for obtaining $21,000 by false pretense by telling a client that he had settled a case against her for $125,000 when the case had been settled for $104,000, it was only necessary for the State to prove that defendant had settled the case on or before 27 April 1982, the date on which defendant allegedly told the client the case had been settled for $125,000, and an allegation in the indictment that the settlement was completed on 14 April 1982 was mere surplusage and did not have to be proven.\nJustice Vaughn did not participate in the consideration or decision of this case.\nAPPEAL by defendant from Martin,