Andresen v. State

Moylan, J., delivered the opinion of the Court. The appellant, Peter C. Andresen, is an attorney at law in Montgomery County specializing in the handling of real estate settlements. On November 1, 1972, an information was filed against him charging four counts of false pretenses. On November 16, 1972, he was indicted by the Montgomery County Grand Jury on 17 additional charges.

The indictment and the information were consolidated for trial. The Washington Post had run a series of investigative reports in the early part of 1972 exposing various “kick-back” schemes, unnecessary charges to buyers and unethical relationships between lawyers, real estate brokers, title companies and developers that combined to plague the unsuspecting layman at real estate settlements. The series spurred bar association action in both the Maryland and Virginia suburbs of Washington. The Bi-County Fraud Unit, ¹³⁴ under the joint auspices of the State’s Attorneys Offices of Montgomery County and Prince George’s County, launched a massive investigation into such practices.

Because of extensive publicity arising out of all of these activities, the appellant’s case was removed, upon his motion, to Frederick County for trial. After a trial before a Frederick County jury, presided over by Judge Samuel W. Barrick, which lasted a week and one-half, and produced (with its pretrial motions) over 1500 pages of testimony, the appellant was convicted of three counts of fraudulent misappropriation by a fiduciary in contravention of Art. 27, § 132, and of five counts of false pretenses. He received eight concurrent two-year sentences. Upon this appeal, the appellant lays down a sweeping barrage of 28 assignments of error: (1) That the counts in the indictment charging fraudulent misappropriation by a fiduciary failed to charge an offense; (2) That the evidence was not legally sufficient to sustain the convictions for fraudulent misappropriation by a fiduciary; (3) That the counts in both the indictment and the bill of information charging false pretenses failed to charge an offense; (4) That the evidence was not legally sufficient to sustain the convictions for false pretenses; (5) That certain physical evidence should have been suppressed because the search warrants were never admitted into evidence; (6) That certain physical evidence should have been suppressed because the warrants were “general” and violated the particularity requirement; (7) That certain physical evidence should have been suppressed because the Plain View Doctrine should not have been applied; (8) That certain physical evidence should have been suppressed because there was no probable cause for the issuance of the warrants; ¹³⁵ (9) That certain physical evidence should have been suppressed because the so-called “nexus” doctrine of Warden v. Hayden was misapplied; (10) That certain physical evidence should have been suppressed because its seizure violated his Fifth Amendment right against compulsory self-incrimination; (11) That the prosecutor’s remarks in closing argument and in rebuttal argument were so prejudicial as to deny him a fair and impartial trial; (12) That nineteen separate errors (to be more fully discussed hereinafter) were made in the course of the court’s instructions to the jury; (13) That the testimony of an alleged accomplice, Melvin L. Clark, lacked corroboration; (14) That the court erred in admitting the testimony of Melvin L. Clark because his testimony was obtained by an “illegal agreement”; (15) That the State knowingly used the perjured testimony of a witness, Norman Hecht; (16) That the trial judge erred in not granting the appellant’s motion for a continuance, thereby denying him both his right to a fair trial and to effective assistance of counsel; , (17) That the trial judge abused his discretion in denying the appellant’s motion for a severance; (18) That error was committed when an irrelevant transaction with Antonelli and Caniglia was admitted into evidence; (19) That the admission of the testimony of the witness Carl Zentz amounted to reversible error; (20) That the motions for judgment of acquittal should have been granted because of the “best evidence rule” and because of the lack of expert testimony; (21) That the appellant was erroneously denied his reservation of certain questions for the court en banc; (22) That the admission into evidence of portions of the testimony of John C. Connally was reversible error; ¹³⁶ (23) That the jury was coerced into reaching its verdict; (24) That the appellant was denied genuine and effective assistance of counsel; (25) That the court erred in denying the appellant’s motions for judgment of acquittal; (26) That the court abused its discretion in denying the motion for a new trial; (27) That the sentence should be vacated; and (28) That the misconduct of the prosecutor required reversal of the convictions. 1.

Adequacy of Fraudulent Misappropriation Charges We have no difficulty in upholding the facial sufficiency of the charges of fraudulent misappropriation by a fiduciary. Art. 27, § 132, provides, in pertinent part: “If any . . . trustee ... or any other fiduciary shall fraudulently and wilfully appropriate to any use and purpose not in the due and lawful execution of his trust, any money or any other thing of value which may come into his hands as such . . . trustee ... or in any other fiduciary capacity ... he shall be deemed guilty of embezzlement. . . .” The three counts charging fraudulent misappropriation, varying from each other only as to date and name of victim, each contained the following critical predicate clause: “. . . did unlawfully, while acting in the capacity of a trustee and fiduciary, embezzle and fraudulently and wilfully appropriate to a use and purpose not in the due and lawful execution of his trust for and on behalf of Seth L. Warfield and Ruey Warfield, the sum of two thousand dollars ($2,000.00) current money, of the value of two thousand dollars ($2,000.00) current money, of the goods, chattels, monies and property of Seth L. Warfield and Ruey Warfield, in violation of Article 27, Section 132 of the Annotated Code of Maryland . . . .” ¹³⁷ Shorn of convoluted verbiage and “scatter-shot” case citation, the kernel of this contention stands naked as a bald allegation. The appellant does successfully build an appellate launching pad, but then fails to get off the pad. In neither pretrial motions nor the trial upon the merits did the appellant attack these counts in terms of their facial adequacy.

He points out correctly, however, that where the issue is the alleged failure of an indictment to charge an offense, the question is of jurisdictional dimension and is subject to appellate review even though not raised below. Phenious v. State, 11 Md. App. 385 , 274 A. 2d 658 . Ironically, having established his right to raise the contention for the first time at the appellate level, the appellant then fails further to contend. In any event, it is clear that the counts were drawn precisely in the language of § 132 and did, therefore, adequately charge the relevant offenses.

The appellant veers off on another tack, not dealing with the facial adequacy of the charges as such but seizing upon their employment of the verb “embezzle.” With a brace of non sequiturs, he reasons that the use of the verb “embezzle” in charging violations of § 132 transforms the offenses into more classic embezzlements under § 129, and that his acquittal of companion counts drawn under § 129 operates as res judicata, barring convictions upon the counts now under review. He is guilty of both bad logic and bad law. With respect to each of three sets of victims, the appellant was charged, with the all-inclusive caution typically shown by thorough charging documents, with (1) larceny after trust, (2) garden-variety embezzlement and (3) fraudulent misappropriation by a fiduciary. The trial judge instructed the jury as to the elements of these at-times complementary and at-times overlapping offenses.

He advised them that although the appellant might be found guilty of one of these offenses with respect to each transaction, he should not be found guilty of two or three related offenses arising out of a single incident. He left it to the jury to pick the offense most applicable to the facts as found by them. When, therefore, the jury returned verdicts of guilty on the three counts charging fraudulent misappropriation by a fiduciary, they ¹³⁸ appropriately refrained from judicial “overkill” by remaining silent as to the charges of larceny after trust and classic embezzlement. Out of our law aimed at preventing double jeopardy emerges the principle that the silence of a jury as to a particular count is the equivalent of a verdict of not guilty as to that count.

That very necessary fiction, salutary enough in guarding against double jeopardy, cannot, however, by a leap of logic, be deemed to be an explicit and positive verdict operating as a res judicata acquittal on a companion charge. The logic, sound enough for one purpose, has no applicability to the other purpose. A technical acquittal, based upon a jury’s restraint in not piling on multiple convictions or alternatively upon the subsuming of lesser-included charges into a greater, does not carry with it the logical implications of an affirmative acquittal upon the merits. When compassion has tempered logic for the obvious benefit of a defendant, the defendant may not then with good grace argue from the result as if that logic had operated ruthlessly in a vacuum.

To escape double punishment is not to be vindicated. Even if the appellant’s logic were valid, however, the law would still frustrate his argument. Even if the acquittals on the embezzlement counts could be held to be based upon affirmative findings that the elements of embezzlement had not been established by the State and that, by necessary implication, the absence of proof of such elements would preclude convictions under § 132, the law simply does not demand consistency between the various verdicts rendered by a jury. The applicable law of the Court of Appeals, of the Supreme Court and of the leading authorities throughout the common law world was summed up by us in Mason v. State, 2 Md. App. 768, 771 , 238 A. 2d 138 : “In Ledbetter v. State, 224 Md. 271 , it was held that a conviction on one count may stand even in the face of an inconsistent acquittal on another count.

To the same effect, see Williams v. State, 204 Md. 55 and Leet v. State, 203 Md. 285 . See also Dunn v. United States, 284 U. S. 390, 393 , where ¹³⁹ Mr. Justice Holmes held that consistency in the verdict is not necessary since the verdict may have been the result of compromise or a mistake on the part of a jury; and Steckler v. United States, 7 F. 2d 59 (2d Cir.), where Judge Learned Hand observed, at page 60, that ‘the most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt.’ ” We perceive no frailty, of omission or commission, in the counts charging fraudulent misappropriation by a fiduciary. 2. Legal Sufficiency of the Evidence Fraudulent Misappropriation Charges The gist of the three fraudulent-misappropriation-by-a-fiduciary charges is that the appellant, as settlement attorney, took money from three sets of home purchasers with the understanding that he was to deliver to them titles free and clear of all encumbrances and that he misappropriated the purchase money to other purposes. Melvin Clark was the owner of the Clark-King Construction Company (hereinafter Clark-King).

In the mid-1960’s, Clark-King began using the appellant as its real estate settlement attorney. He soon became the exclusive attorney for its numerous real estate settlements. The appellant, moreover, did the title search on every large tract of land that Clark-King bought for development, as well as every lesser-included title search for each lot in those developments as the lot came up for sale. The appellant handled other work as well for Clark-King, preparing virtually all of its legal papers in connection with its real estate transactions, handling the settlement of its construction loans which permitted Clark-King to build new homes, and preparing the deeds of trust given as security for those loans.

With the advent of the tight-money market in 1967, ¹⁴⁰ Clark-King began experiencing financial difficulty. It had to find a way to keep up payments to its contractors in order to keep them working on putting up new homes in the developments. Even as these difficulties were being experienced, fewer new homes were being sold to provide money for such purposes. Clark-King found itself sometimes unable to pay off all debts on a new home in order to give a free and clear title to the home buyer.

The appellant and Clark-King reached an agreement to stave off disaster, whereby the appellant would maintain “a running account,” ostensibly laying out money for Clark-King so. that a free and clear title could be delivered. Mel Clark testified that he thought this was a lending arrangement, under which the appellant would be repaid once sales improved. Clark thought that prior debts secured by deeds of trust on the various lots were being paid off so that good titles were being delivered at the time of settlement. These deeds of trust and other encumbrances were, indeed, listed on the seller’s settlement sheet.

The evidence revealed, however, that these encumbrances were frequently not being released. The Clark-King development that concerns us in this case was an area known as Potomac Woods, Section 10. That section was divided into approximately 20 lots, three of which became the subjects of the fraudulent misappropriation charges now under review. The first pertinent encumbrance was a deed of trust to the F. O. Day Company.

On September 30, 1969, the F. O. Day Company loaned Clark-King $37,000 and received in return a $37,000 note. As security for that note, a deed of trust was executed on December 13, 1969, from Clark-King to F. O. Day Company on 16 lots in the Potomac Woods subdivision, including the three key lots in this case. Provisions were made for the release of any of these particular 16 lots, as that lot would come up for sale, by the payment of $2,000 on the note with the appropriate designation that the payment was being earmarked for the partial release of a particular lot. When Mel Clark personally made payment to the F. O. Day Company without any direction that the payment be applied to one of the lots in Potomac Woods, that payment ¹⁴¹ went toward the reduction of a more general $15,000 debt owed by Clark-King to the F. O. Day Company.

The payments in the precise amount of $2,000 and the release of the deed of trust on particular lots almost always came from the appellant directly, in anticipation of a particular settlement, to the F. O. Day Company. The appellant, in fact, was the trustee for this particular deed of trust. Mr. and Mrs. Richard Pollitt moved from New York City to Montgomery County in the spring of 1970. They signed a contract to purchase the property at 1976 Lancashire Drive, which was Lot 12, Block ,S, of the Potomac Woods subdivision (hereinafter the Pollitt lot).

The contract drawn up by the real estate company designated the appellant as the settlement attorney. Mr. Pollitt indicated to the real estate company that he wanted his own attorneys, Bell and Bell, to handle the settlement. He was told by the real estate agent that Clark-King insisted upon having all of its settlements done by the appellant. The Pollitts then acquiesced in that arrangement.

Physically present at the settlement was George F. Paxton, an attorney who worked for the appellant. The settlement took place on May 15,1970. Mr. Pollitt paid $225 for a title search, which was handled by the appellant’s office. Mr. Pollitt paid $175.23 for a title insurance policy, which was procured through the appellant.

Mr. Pollitt received assurances that, aside from the purchase money mortgage he was then executing to the Equitable Life Insurance Company, “there would be no clouds on the title.” Among the settlement documents was a Notice to Buyer and Seller as to Evidence of Releases to be Furnished Them and identifying the Pollitt lot as the subject property. That notice, required by Article 21, § 142, of the Annotated Code of Maryland, provided: “In connection with the settlement of the sale and conveyance of title in this transaction, notice is hereby given: One. That you are entitled to be furnished by Peter C. Andresen, the settlement attorney, evidence of recorded releases of mortgages or deeds of trust to ¹⁴² be obtained with all or part of the funds to be disbursed within thirty days from the date of delivery of the deed conveying title to captioned property. Two.

That if the recording of the releases will be delayed beyond the thirty-day period, a letter explaining the delay shall be mailed to you by or through this law firm within the thirty-day period. Three. That the procedure of mailing a letter of explanation each thirty days is necessary until the required evidence of recorded releases is furnished to you. Four.

That if the evidence of a recorded release is not furnished you within the required period of time, you or either of you, or an organized Bar Association of the State of Maryland may petition a Court of Equity to accomplish this purpose. Five. That in the event that the funds are properly disbursed by said settlement attorney within five days from the date of delivery of the deed, the law does not require that you be furnished evidence of recorded releases unless you specifically request that we do so. This notice is given to you pursuant to Section 42, Article 21 of the Annotated Code of Maryland.

You are required to acknowledge that this notice was given you prior to the execution of the deed conveying title to the property.” There was an additional clause at the bottom of the notice which provided: “We hereby waive being furnished evidence of recorded releases, having been assured by said settlement attorney that all funds in this transaction will have been disbursed within five days from the date of delivery of the deed.” The Assistant Treasurer of Equitable Life testified that she approved the loan of $39,000 for the Pollitts to purchase ¹⁴³ their new home. She pointed out that company policy would have precluded the loan unless it was to be a “first trust loan.” Following the normal procedure in such matters, Equitable Life issued explicit written instructions to the appellant, as settlement attorney, to apply the loan funds to that settlement only upon the condition that any prior encumbrances be released so that Equitable Life would hold “a valid first lien against the first property without exception.” The appellant was instructed to provide title insurance for the benefit of Equitable Life. Equitable Life received, through the appellant, a title insurance policy from the Title Insurance Company of Minnesota. The title insurance policy received by Equitable Life and the copy of the buyer’s settlement sheet received by Equitable Life made no mention of the deed of trust to the F. O. Day Company or, indeed, of any other prior lien.

The Pollitts, and Equitable Life, only learned of the deed of trust to the F. O. Day Company in June of 1972, when the Pollitts had agreed to resell the property and were preparing for settlement. Their then attorney, David C. Galfond, searched the title and discovered the unsuspected encumbrance. Seth and Ruey Warfield encountered a similar experience. On July 1, 1970, they purchased the property at 1890 Milborough Drive, which was Lot 25, Block R, of the Potomac Woods subdivision (hereinafter the Warfield lot).

They were advised by the real estate agent that the appellant “was handling all settlements for that area.” Although they were told that they could bring their own attorney to the settlement, they were further “advised that we could but that it was an unnecessary expense.” They decided to rely exclusively upon the appellant. The appellant was not physically present at the settlement but was again represented by his associate, George Paxton. The Warfields paid $55 to the appellant as a settlement charge, $225 to the appellant to examine the title and $90 to the appellant to procure title insurance. They also signed, at the suggestion of Mr. Paxton, the waiver of notice, “having been assured by said settlement attorney that all funds from this transaction ¹⁴⁴ will have been disbursed within five days of delivery of the deed.” They were told that the notice was “just another formality.” The title search, the settlement sheet and the title insurance policy indicated that there were no encumbrances upon the property other than the purchase money mortgage which they arranged with Equitable Life.

The Associate Treasurer of Equitable Life testified that they received the same assurances from the appellant and issued the same directions to the appellant with respect to the Warfield lot as they had received and issued with respect to the Pollitt lot. The Warfields were oblivious to the F. O. Day Company deed of trust until June, 1972, when they were alerted to the possibility of trouble by their neighbors, the Pollitts. They then obtained their own attorney to investigate the condition of their title. Since the appellant was not physically present at the settlements involving the Pollitt lot and the Warfield lot, a word is in order as to what the testimony revealed about the role of his surrogate, George F. Paxton.

Paxton was, during the summer of 1970, a two-year graduate of law school, who had been working in the appellant’s office since April, 1970. His “main responsibility was to handle law suits that came into the office” and, as the trial man, he “did very little with the real estate end of the practice.” On occasions, however, when the appellant “was called out of town or wished to be away on vacation or had another suit or something like that,” Paxton would physically preside over the settlements. He explained that he had no role in the preparation of any of the settlement documents (that task, according to him, was always handled directly by the appellant or by one of the secretaries working directly under the appellant), but that he could go through the pro forma procedures of a settlement, seeing to it that the deeds were appropriately signed and delivered and the checks were made out in amounts dictated by the settlement sheets and handed over to the appropriate parties. In terms of the substance of the settlements, his role was completely neutral.

In terms of evidence to negate ignorance or mistake on the part of the appellant with respect to the Pollitt settlement ¹⁴⁵ and the Warfield settlement, the testimony of Mel Clark was significant. He related that the settlements with him (as seller) were subsequent to and apart from the settlements with the buyers. The appellant sat down personally with Clark to go over both settlements. Initially, a tentative settlement sheet was prepared for the seller, listing the amount of money coming in from the sale and then listing the various debts owed and encumbrances to be released.

In these two instances, the liabilities significantly outweighed the assets. As a result, the appellant prepared amended settlement sheets for the seller, reducing the list of liabilities so that they could be handled or nearly handled with the available assets. Among the liabilities which were given priority and which, therefore, remained on the amended settlement sheets were payments to various suppliers and contractors (e.g., Standard Supply in Gaithersburg for $1,500; an air conditioner contractor for $1,000; the Maloney Concrete Company for $1,000; a lumber dealer for $2,000). In both instances, payments to the F. O. Day Company in the amount of $2,000 on each of the lots for the release of the deeds of trust for the Pollitt lot and the Warfield lot were marked “payment deferred.” Clark testified that it was his understanding that the appellant would pay the $2,000 in each case to secure the appropriate release in order to give good title and would then reimburse himself from the proceeds of the next settlement he handled for Clark-King.

The pattern repeated itself, with minor variations, when Robert and Joyce Holtzclaw purchased 1887 Middleborough Drive, which was Lot 7, Block T, of the Potomac Woods subdivision (hereinafter the Holtzclaw lot) on July 10, 1970. The appellant was the settlement attorney because, according to Mr. Holtzclaw, “it was the recommendation of the realty firm.” The appellant personally conducted that particular settlement. Mr. and Mrs. Holtzclaw signed a waiver of notice of “recorded releases, having been assured by said settlement attorney that all funds from this transaction will have been disbursed within five days from the date of delivery of the deed.” That waiver form was turned over to the appellant. The check for the purchase ¹⁴⁶ money was delivered to the appellant.

The appellant was paid $220 for a title search and was paid $8.50 for a title insurance policy. In order to purchase their property in Potomac Woods, the Holtzclaws borrowed $38,000, secured by a mortgage, from The Enterprise Federal Savings and Loan Association. James Spellman, the Assistant Secretary-Treasurer of Enterprise, testified that he instructed the appellant, as settlement attorney, in writing, “You are instructed to record the Deed of Trust and use our check when you are in a position to report the title to Lot 7 Block T ‘Potomac Woods’, . . . good according to records in fee simple, in Robert E. Holtzclaw and Joyce Lynn Holtzclaw, his wife, as Tenants by the Entirety, subject (only) to the enclosed Deed of Trust, which is to be a first lien against said property.” He subsequently received from the appellant a copy of the Settlement Statement for Seller, which showed Enterprise to have a first deed of trust. The Settlement Statement for Buyer, given to the Holtzclaws, showed the mortgage to Enterprise as the only encumbrance upon the property.

As the Holtzclaws discovered two years later, their property had been encumbered by not one, but three, prior deeds of trust. The Holtzclaw lot, as with the Pollitt lot and the Warfield lot, was part of an unreleased deed of trust from Clark-King to the F. O. Day Company. As with the other lots, a payment of $2,000 would have been-required to obtain a partial release from the F. O. Day Company, effecting a clear title to the Holtzclaws in Lot 7T, at least with respect to the F. O. Day Company. That $2,000 was not paid by the appellant, and the release was not obtained.

The Holtzclaw lot was also encumbered by a second deed of trust from Clark-King to the State National Bank of Bethesda and by a third deed of trust from Clark-King to Arthur Dale Lumsden. As with the F. O. Day Company deed of trust, the deeds of trust to both the State National Bank and Arthur Dale Lumsden were for a number of lots in the Potomac Woods subdivision. As lots were sold, a partial release for a particular lot was to be obtained from the State National Bank for $1,000 per lot and from Arthur Dale Lumsden for ¹⁴⁷ $1,333 per lot. After the Holtzclaw settlement, no payments were made to either the State National Bank or to Arthur Dale Lumsden, and the releases were not obtained.

A release for the Holtzclaw lot was obtained from the Lumsden trust, approximately one year after the settlement, on July 27, 1971. The release of the Holtzclaw lot from the State National Bank trust and the releases of all three lots from the F. O. Day Company trust were only obtained in the summer of 1972, after the Pollitts had independently discovered the unsuspected encumbrance upon their lot and after the general investigation of the appellant’s settlement activities was in full swing. The payment was made to the State National Bank trust and the release for the Holtzclaw lot was obtained on October 3, 1972. The appellant makes the factually unsupported claim that he may have promptly paid off the various deeds of trust, the fact of payment being legally significant in terms of procuring clear title, and have simply neglected to record the releases, at most a formality.

That arguable hypothetical is squarely belied by the testimony of Peter Hitchen, the Treasurer for the F. O. Day Company. Hitchen described both the record keeping and the arrangements for payment and releases entered into by the appellant and Clark-King, on the one hand, and the F. O. Day Company, on the other hand. He described how payments from the appellant would always be in precise multiples of $2,000 and would specify precisely the lot or lots to be released by such payment. He testified that payment was received and the release was given for the Pollitt lot on June 19, 1972.

Payment was received and a release was given on the Warfield lot on July 7, 1972. Payment was received and a release was given on the Holtzclaw lot on July 27, 1972. On September 26, 1972, Hitchen showed to the appellant the records of the F. O. Day Company recording when payments had been received and when releases were given on all of the various lots in the Potomac Woods Subdivision, which collectively guaranteed the $37,000 note. After reviewing the records, the appellant objected only to the failure to credit him for $120 of interest ¹⁴⁸ on one of the loans, not here relevant.

In terms of the knowledge and attitude of the appellant, several exchanges between him and Hitchen are significant. When the appellant arrived to pay the $2,000 to obtain the release on the Holtzclaw lot, Hitchen greeted him with, “It looks to me as though you’ve been playing the old escrow game.” The appellant said nothing in reply. Later in the same conversation, Hitchen “accused him of being a crook” and the appellant again said nothing in reply. Even within the limited confines of this second of 28 contentions, the attack upon the legal sufficiency of The evidence is diffused.

The appellant claims that the State failed to establish venue in Montgomery County, upon the strained theory that the situs of the fraudulent misappropriations was the undesignated spot where the escrow account was kept .and not the place where the settlements occurred. Without attributing even arguable merit to the claim, we properly rely upon the fact that this issue was not raised at the trial and was not ruled upon by the trial judge. Accordingly, the point has not properly been preserved for appellate review. Maryland Rule 1085.

And see Bailey v. State, 16 Md. App. 83 , 294 A. 2d 123 ; Maryland Rule 725 b. The appellant makes the additional claim that the State has not shown him to be a “trustee ... or any other fiduciary” within the contemplation of § 132. We cannot agree. Black’s Law Dictionary (4th Ed., 1951), defines “Fiduciary Capacity” as follows: “One is said to act in a ‘fiduciary capacity’ or to receive money or contract a debt in a ‘fiduciary capacity,’ when the business which he transacts, or the money or property which he handles, is not his own or for his own benefit, but for the benefit of another person, as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other part.

The term is not restricted to technical or express trusts, but includes also such ¹⁴⁹ offices or relations as those of an attorney at law, a guardian, executor, or broker, a director of a corporation, and a public officer.” (Emphasis supplied.) The Maryland case law is in complete accord. In Gaggers v. Gibson, 180 Md. 609 , 26 A. 2d 395 , the Court of Appeals said, at 180 Md. 613 : “[A] fiduciary relation exists in every case ‘in which there is confidence reposed on one side and the resulting superiority and influence on the other. The relation and the duties involved in it need not be legal; it may be moral, social, domestic or merely personal’.” See also Gerson v. Gerson, 179 Md. 171, 177 , 20 A. 2d 567 , and Chase v. Gray, 134 Md. 619 , 107 A. 537 . In Anderson v. Watson, 141 Md. 217 , 118 A. 569 , the Court of Appeals said, at 141 Md. 234 : “A ‘fiduciary’ or ‘confidential’ relation, when used in the same connection, exists ‘in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing the confidence.

The rule embraces both technical fiduciary relations, and those informal relations which exist wherever one man trusts in and relies on another; the origin of the confidence reposed is immaterial’.” The language of § 132 indicates to us a clear legislative intent to extend the proscription of the embezzlement laws to those who breach a fiduciary trust as above defined. In Doxen v. State, 151 Md. 118 , 134 A. 166 , the Court of Appeals affirmed the conviction, for classic embezzlement, of an attorney who received money from the purchaser of a property for the purpose of paying off an existing mortgage and then failed to pay it off. The Court approved a comment by the trial judge that indicated that an attorney, in ¹⁵⁰ handling such property arrangements, might simultaneously be the agent of both the mortgagor and the mortgagee. Generally speaking, it is clear that an attorney does come within the proscriptive coverage of the embezzlement law under § 129.

Cooke v. State, 9 Md. App. 303 , 263 A. 2d 620 . We hold that the evidence in this case sufficiently supports the inference that the Pollitts, the Warfields and the Holtzclaws relied upon the appellant to serve as the attorney for both them and the seller at the property settlements, reposing trust and confidence in him to represent their interests and to see that their purchase money was properly applied to obtain the release of any preexisting liens upon their properties in order to give them free and clear titles. The reassurances given by the appellant directly, and through Paxton, that all liens would be paid off within five days, thus disposing of any necessity to give notice otherwise, supports this inference. The clear instructions given to the appellant by the two lending institutions further support such an inference.

The appellant claims additionally that the evidence failed to show that he personally profited — that he appropriated any of the funds to his own use. He reads § 132 too narrowly. What is proscribed is the fraudulent and wilful appropriation “to any use and purpose not in the due and lawful execution of his trust.” Where the evidence permits the inference (as it clearly did) that the purchase money entrusted to the appellant by the Pollitts, the Warfields and the Holtzclaws, respectively, for the purpose of releasing any encumbrances and providing clear titles was fraudulently and wilfully put to some other purpose, the crime is complete. It matters not whether the direct benefit of the misappropriation went to the appellant himself, to Mel Clark, to Clark-King Construction Company or to any other.

The same principle applies here as in a case of false pretenses, whereof Chief Judge Orth said for this Court in Polisher v. State, 11 Md. App. 555, 580-581 , 276 A. 2d 102 : “The argument fails because ‘[t]here is no ¹⁵¹ doctrine of lucri causa in the field of false pretenses. It is accordingly immaterial that the defendant did not gain or intend to gain any personal benefit or advantage from obtaining the property from the victim.’ Id. [2 Wharton’s Criminal Law (Anderson Edition)] § 583, p. 309. ‘[T]he defendant is responsible for his false pretense even though he did not personally gain any benefit from the goods which had been obtained thereby.’ Id., § 585, p. 316. It is stated in Hochheimer, Criminal Law (2nd Ed. 1904), § 323, p. 356: ‘It is sufficient that the thing has been confided to the offender, it being immaterial that he did not obtain it on his own account, nor for his own gain or benefit.’ ” The appellant attempts to negate the elements of wilfulness and fraud by postulating mere negligence or mistake. That was a question properly for the jury, and they resolved it against him.

The overall pattern established in multiple transactions, the appellant’s personal knowledge of prior encumbrances both as Clark-King’s attorney and as trustee for the accompanying deeds of trust, his preparation of settlement sheets in his own handwriting, his preparation of separate settlement sheets and his scheduling of separate settlements for seller and buyer, his working agreement with Clark, his silence in the face of Hitchen’s accusations, his subsequent obtaining of all five releases for the hidden encumbrances on the three properties two years later and only after a criminal investigation into his activities had begun all permitted the jury reasonably to infer that his conduct was wilful and fraudulent and not simply negligent. The evidence was legally sufficient to permit the three counts charging fraudulent misappropriation by a fiduciary to go to the jury. Williams v. State, 5 Md. App. 450, 459 , 247 A.2d 731 ; Metz v. State, 9 Md. App. 15, 23 , 262 A. 2d 331 . 3. Adequacy of False Pretenses Charges Four of the five false pretenses charges allege offenses ¹⁵² against the Title Insurance Company of Minnesota.

As to these four counts, the appellant asserts that they fail to charge an offense in that they fatally “omitted the element of ‘intent to defraud.’ ” Section 140 provides, in pertinent part: “Any person who shall by any false pretense obtain from any other person any chattel, money or valuable security, with intent to defraud any person of the same, shall be guilty of a misdemeanor. . .” The underlined words clearly set out the specific intent or special mens rea of the crime. Section 609, dealing with the form of a false pretenses charge, provides: “In any indictment, information or warrant for false pretenses, it shall not be necessary to state the particular false pretenses intended to be relied on in proof of the same and in any such indictment, information or warrant it shall be sufficient to use a formula substantially to the following effect: ‘That A-B on the ................ day of ................, 19...., in the County (City) aforesaid, unlawfully and knowingly, by a certain false pretense, did obtain from C-D (here listing the articles obtained) of the goods, chattels, moneys and property of C-D, with intent then and there to defraud, in violation of Article 27, Section (here state section violated), of the Annotated Code of Maryland; contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.’ ” (Emphasis supplied). The false pretenses count charging an offense against Standard-Young Associates did, between the naming of the victim and the words “in violation of Article 27, Section 140,” insert the words “with intent then and there to defraud.” The other four false pretenses charges inadvertently jumped from the naming of the victim to the ¹⁵³ words “in violation of Article 27, Section 140” and omitted the seven-word prepositional phrase now in issue. The point is a nice one.

The appellant may not take succor, as he seeks, in Dunphy v. State, 13 Md. App. 671 , 284 A. 2d 631 . The count there held to be inadequate “completely omitted the element that any chattel, money or valuable security was obtained by the false pretense,” id. at 13 Md. App. 674 , the indispensable gravamen of the offense. It is nonetheless clear that the specific “intent to defraud” is an essential element of the crime of false pretenses. Polisher v. State, supra, at 11 Md. App. 560 .

It is true that appellant did not raise the question below, Maryland Rule 725 b, but where a charge fails to state an offense, by failing to allege all necessary elements of the crime, appellate review is not foreclosed by such failure. Phenious v. State, supra; Ward v. State, 9 Md. App. 583, 587 , 267 A. 2d 255 . “The validity of the legal principle redeclared in Baker [Baker v. State, 6 Md. App. 148 , 250 A. 2d 677 ] — that attacks upon indictments failing to charge an offense are of jurisdictional dimension and require appellate review whether or not the issue was raised below — is beyond doubt.” Urciolo v. State, 19 Md. App. 123, 139 , 310 A. 2d 165 , reversed on other grounds in Urciolo v. State, 272 Md. 607 , 325 A. 2d 878 . The use of the adverbs “unlawfully and knowingly” in the counts now under review will not fill the breach, for they are descriptive of general mens rea. In Baker v. State, 6 Md. App. 148 , 250 A. 2d 677 , Judge Orth dealt with the necessity of alleging a specific intent where it is an element of the crime, saying at 6 Md. App. 154 : “In charging the substantive offense the general rule is that the criminal intent of the accused must be alleged when the criminality of an act depends upon the intent with which it was done, as when the statute makes such intent one of the constituent elements of the offense. 4 Wharton’s Criminal Procedure (Anderson) § 1773, p. 576.

That is to say, when an act is by statute made criminal only if ¹⁵⁴ done with a particular intent, the intent must be alleged and proved according to the terms of the statute. Joyce on Indictments, 2d Ed., p. 450. See also Hochheimer Criminal Law, 2d Ed., § 102, p. 123; 41 Am. Jur. 2d 951; 42 C.J.S. 1027.

It follows that when the indictment charges an attempt to commit an offense, an essential element of which is a specific intent, the required specific intent of the offense charged as attempted must be averred. ‘Specific intent to commit the offense charged in an indictment, of which intent is an essential ingredient, is not sufficiently averred by an allegation that the accused did the acts charged in an attempt to commit the offense charged, when such acts also constitute an entirely distinct and separate offense * * 4 Wharton’s Criminal Procedure, supra, § 1773, p. 577.” See also 32 Am.Jur.2d, False Pretenses, § 62, “Indictment and Information — Intent to defraud . . .”, p. 214: “An indictment for obtaining something of value by means of false pretenses must allege that pretenses were made with intent to defraud.” Accordingly, we hold the four counts charging false pretenses against the Title Insurance Company of Minnesota to have been fatally defective. A Legal Sufficiency of Evidence on Remaining False Pretenses Charge In reviewing the legal sufficiency of the evidence to prove false pretenses, we are left with the single count alleging the victimization of Standard-Young Associates. As we undertake to assay the sufficiency of that evidence, we measure it against the standard articulated in Polisher v. State, supra, at 11 Md. App. 560 : “The false pretense is the crux of the crime. So the crime is committed when a person: 1) by making a false representation of a past or existing fact; 2) with intent to defraud; and ¹⁵⁵ 8) knowledge of its falsity; 4) obtains any chattel, money or valuable security from another; 5) who relies on the false representation; 6) to his detriment.” See also Smith v. State, 237 Md. 573 , 207 A. 2d 493 ; Tumminello v. State, 10 Md. App. 612 , 272 A. 2d 77 ; Lockhard v. State, 3 Md. App. 580 , 240 A. 2d 312 .

The false pretense perpetrated on Standard-Young Associates involved the sale of another of the lots in Section 10 of the Potomac Woods subdivision — Lot 13, Block T (hereinafter Lot 13T). As security on a note, Clark-King had executed a deed of trust to the State National Bank on a number of Potomac Woods lots, including 13T, which deed of trust was recorded on August 2, 1968. As security on yet another note, Clark-King executed a deed of trust on a number of the Potomac Woods lots, including 13T, to an Arthur Dale Lumsden which deed of trust was recorded on October 9, 1968. The appellant was actually the trustee for the deed of trust to the State National Bank and was personally responsible thereunder for signing any releases as to individual lots.

The history of Lot 13T is significant in demonstrating facts from which the jury could reasonably infer subsequent “knowledge of falsity” on the part of the appellant. In November of 1969, Clark-King could not pay off two of its bricklayers — Antonelli and Caniglia — and in satisfaction of a $10,000 debt conveyed to them the title to Lot 13T. The appellant handled the settlement and prepared the report of title. The report of title recited that there were no outstanding mortgages or deeds of trust on 13T.

The seller’s settlement sheet — prepared by the appellant for Clark-King — listed, however, the two outstanding deeds of trust. Mel Clark testified that it was at about this time that straightened financial circumstances made it impossible for him to discharge prior deeds of trust on lots which he sold. It was at this time that he and the appellant came to- an understanding whereby the appellant would procure the ¹⁵⁶ releases with his own money and then be reimbursed by Clark-King at the time of the next settlement. A small memorandum-type note — analyzed to be in the handwriting of the appellant — was found clipped to the file of this 1969 sale of 13T from Clark-King to Antonelli and Caniglia.

It read, “Marlene, set up deferred card for Clark like Damazo’s and list this case (two trusts on it).” The years went by and the notes were never paid and the deeds of trust on 13T were not released. In 1971, the Lumsden note, secured by the deed of trust, was obtained by Clark-King and in turn pledged to the Madison National Bank as security for a $24,000 loan. Lot 13T remained deeded in trust as part of this security, although releases were obtained on other lots on a one-by-one basis. George Young first came into contact with Lot 13T in the summer of 1972.

He was a small builder in Montgomery County. A word is in order as to the capacity in which Young did business, since the appellant claims, among myriad other claims of legal insufficiency, that there was a fatal variance between allegata and probata as to the victim of this particular false pretenses count. The information recited that the victim was “Young Contracting Company, Inc., a corporation, and Standard Investment Corporation, a corporation, trading as joint venturers under the name of Standard-Young Associates.” The appellant charges that there was no evidence that either Young Contracting Company, Inc., or Standard Investment Corporation was a corporation and relies on Stackhouse v. State, 1 Md. App. 399 , 230 A. 2d 358 , to require reversal where there is a fatal variance. The contention is without factual predicate.

Young testified that he was “connected with” two “building corporations” and then identified “Young Contracting Corporation” and “Standard 1 Development Corporation” by name. Young testified that he was the secretary of both corporations. Young testified further that the articles of incorporation for “Standard” were drawn up by a District of ¹⁵⁷ Columbia attorney and that the articles of incorporation for “Young Contracting” were drawn up by someone in the appellant’s office. The proof of the corporate characters was abundant.

Young had known and worked with the appellant for several years prior to 1972. Shortly prior to July of 1972, the appellant took the initiative and approached Young about the purchase of Lot 13T. The appellant indicated that it belonged to “some accounts of his who owned it and they needed the money and they’d love to have it sold.” Young agreed to purchase it for $12,000. A contract of sale was signed on June 14, 1972.

The appellant was listed as the settlement attorney. The contract, in the appellant’s handwriting, recites, “The property, including the aforesaid chattel, is sold free of encumbrance, except as aforesaid.” The “aforesaid” references pertain to two matters not here relevant and did not allude, in any manner, to the deeds of trust held by the State National Bank or the Madison National Bank (securing the Lumsden note). The settlement was held on July 17,1972, presided over by the appellant. Young inquired as to whether he would need a title insurance policy, and the appellant assured him^that he would not.

The real estate broker, due to receive the commission on the sale, was Kensington Associates Realty, Incorporated. The minutes and stock ledger of Kensington Realty show that every share of stock in that corporation is owned by the appellant. The seller (apparently having obtained the property from Antonelli and Caniglia) was Mt. Vernon Development Corporation.

The corporate records of Mt. Vernon indicated that in 1967 100 shares of stock had been issued to the appellant as “attorney, Trustee for owners.” There was no other indication of the ownership of Mt. Vernon. Standard-Young Associates gave $7,000 in cash and gave a note to Mt.

Vernon for the additional $5,000 needed to meet the purchase price. After the settlement, Young obtained a construction loan upon the understanding that there were no superior encumbrances on the property. A title insurance ¹⁵⁸ binder had to be issued to the lender guaranteeing a good title. June Stup, the appellant’s secretary, was to prepare the form.

She was given by the appellant as a model the earlier form from 1969 from Clark-King to Antonelli and Caniglia, showing a free and clear title. Because office files showed encumbrances, however, she personally questioned the appellant about such a certification. He told her “to type the title insurance binder identically as it was shown on this piece of paper.” Young began the construction of a home and sank approximately $15,000 into the project. In September, 1971, the Lumsden note was in default and Madison National Bank was no longer under an obligation to release individual lots upon partial payments.

That was the situation when the appellant sold Lot 13T to Standard-Young Associates in July, 1972. In September, 1972, Madison National Bank elected to foreclose on the deed of trust. Clark conferred with the appellant. The appellant sent Clark to Madison National Bank with a check for $2,000 drawn on his own account to try to obtain a release on Lot 13T.

The bank would not agree, there being at that time only two lots left to secure a debt of $16,000. The bank gave notice to Standard Savings and Loan Association, the lender to Standard-Young Associates, and all construction on the partially completed house ground to a halt on September 12, 1972. It could not resume until November 8,1972. Young immediately confronted the appellant and demanded to know why the title had not been free and clear.

The appellant issued Young a title insurance policy from the Title Insurance Company of Minnesota, of which the appellant was an agent. The insurance company subsequently had to purchase the Lumsden note from the Madison National Bank for $7,000 in order to give Standard-Young Associates their clear title. In October, 1972, the appellant had paid $1,000 to State National Bank to obtain a release from them as to Lot 13T. We have no difficulty in concluding that the evidence was sufficient to have permitted the jury reasonably to infer that the appellant falsely represented to Standard-Young ¹⁵⁹ Associates that there were no hidden deeds of trust on Lot 13T, that the appellant made the false representation with knowledge of its falsity and with intent to defraud, that he caused them to part with $12,000 to their detriment in reliance upon the false representation.

That the victim could not place a monetary figure on the loss occasioned by the two-month halt in construction or upon the risk it unnecessarily ran above and beyond that halt is immaterial. In 2 Wharton, Criminal Law and Procedure (Anderson Edition, 1957), the following is said, at § 602, pp. 360-361: “To constitute the offense of obtaining property by false pretenses it is necessary to show that the actions of the victim in reliance on the defendant’s misrepresentations have caused the victim loss or that the victim has been prejudiced in some way. It is not necessary that the victim has sustained actual money loss. Loss is sustained even though the victim has incurred merely a conditional or future liability, such as that based on negotiable instruments.

The fact that the victim has been indemnified or may possibly be indemnified for his loss, or that restoration of the property or money has been made, does not prevent the prosecution of the defendant for false pretenses.” In 32 Am.Jur.2d, False Pretenses, § 38, “Injury or prejudice resulting from transfer,” it is said, at p. 200: “[T]he gravamen of the offense is in the making of the false pretense with intent to defraud and thereby obtaining another’s property. So it is not essential that the victim suffer a permanent loss or that he sustain a pecuniary loss. The offense is complete when money or property has been obtained by false representations, and it cannot be purged by subsequent restoration or repayment. Accordingly, where a person induces another, by means of false pretenses, to part with his property, he cannot defend against a charge of obtaining property by false pretenses by showing that the ¹⁶⁰ person who parted with his property had recovered in a civil action the value of the property, or by showing that the victim had recovered by other means or from other sources.

Nor will the actual repayment of a loan obtained by false pretenses constitute a defense against a criminal prosecution for obtaining money by false pretenses.” See People v. Jones, 36 Cal. 2d 373 , 224 P. 2d 353 ; State v. Mills, 96 Ariz. 377 , 396 P. 2d 5 ; Pepper v. People, 75 Colo. 348 , 225 P. 846 . Of similar import is Perkins, Criminal Law (2d Edition, 1969), at 313-314: “[T]here is no requirement of actual pecuniary loss on the part of the intended victim. If the false representation was with reference to the security given for money borrowed, or property purchased on credit, it is no defense to a charge of false pretenses that the debt has since been paid.” And see Baskerville v. State, 23 Md. App. 439 , 327 A. 2d 918 . 5. Search and Seizure — Introduction of Search Warrant The appellant’s claim that fruits of two simultaneous searches and seizures should be suppressed because the State failed to introduce the warrants and the applications for the warrants is fatuous.

A search warrant for the appellant’s law office at 3700 Decatur Avenue, with a supporting affidavit and application of thirteen tightly typed legal size pages and twenty-five additional pages of supporting exhibits, is part of the record. A search warrant for the office of the Mt. Vernon Development Corporation at 3514 Plyers Mill Road, with a supporting affidavit and application of fourteen tightly typed legal size pages and twenty-four additional pages of supporting exhibits, is also part of the record. Also in the record is the Petition of the State, filed on April 6, 1973, to have the two original search warrants, then ¹⁶¹ in the custody of the Clerk of the Court of Montgomery County, forwarded to Frederick County, to which the trial had been removed, and made a part of the record in anticipation of the then pending hearing on the appellant’s motion to suppress physical evidence.

On April 6, 1972, Judge Philip M. Fairbanks, of the Circuit Court of Montgomery County, signed the following order: “ORDERED, that two original search warrants, their supporting applications and affidavits and accompanying returns, entitled ‘State of Maryland vs. The Premises Known As Law Offices of Peter Christian Andresen * * * 3700 Decatur Avenue * * * ’ and ‘State of Maryland vs. The Premises Known As Mount Vernon Development Corporation * * * Known As 3514 Plyers Mill Road * * *, executed in October, 1972, now in the possession of the Clerk of the Circuit Court for Montgomery County, be transferred by him under his seal and with his oath or affirmation as to the period of time they have been in his custody, to the Clerk of the Circuit Court for Frederick County for the purpose of their introduction into the records of Criminal Nos. 13189, 13238, 13239, and 13240 (removed to the Circuit Court for Frederick County and there known as Criminal Nos. 3100, 3101, 3102 and 3103, respectively), before April 11, 1973 at ten o’clock a.m.” A full suppression hearing was held before Judge Barrick in Frederick on April 11 and 12, 1973. The record of that hearing runs to 375 pages. Throughout the hearing, extensive references were made on numerous occasions to the warrants and the applications. The inescapable import is that both advocates and the judge were referring to and reading from the warrants and their applications.

On several occasions, Judge Barrick admonished the State not to have witnesses read from the warrant because “the warrant speaks for itself.” It is clear from the suppression hearing that the search ¹⁶² warrant and accompanying affidavit and application for 3700 Decatur Avenue was Defendant’s Exhibit #1. The court even went so far as to offer the formal document to the appellant’s attorney: “MR. LAMB: Your Honor, is there a copy of the affidavit in the file? THE COURT: Yes.

MR. LAMB: Well, let me proceed a little further. With regard to the investigation, were two affidavits prepared in support of the search warrants? A. There were two premises, two affidavits.

Q. Are the affidavits in both warrants for both premises exactly the same but for the location to be searched? A. I have no idea at this time whether both were identically the same or — or — Q. You knew at the time you signed them whether they were the same — you read them? THE COURT: They’re here in the file, Mr. Lamb. MR.

LAMB: The only problem, Your Honor, I only have my copy which has handwritten notes — THE COURT: You’re welcome to the file. MR. LAMB: I’m trying to limit it from the standpoint of, are the affidavits the same. THE COURT: Well, they’re right here, and you can determine that by looking at them — they’re right here.

I’ll be glad to give you the whole file. MR. LAMB: I’ll use the affidavit, Your Honor, which — Your Honor, I would ask that this be marked for purposes of the record as Movant’s Number 1 — Defendant’s Number 1. Def Exh 1 thereupon marked. ¹⁶³ MR.

LAMB: Agent, I show you what has been marked Defendant’s Exhibit 1 and ask if you can identify that. A. Yes, sir. Q. What is it? A. Affidavit in support of search warrant.

Q. What address is named therein? A. This particular address is 3700 Decatur Avenue, Kensington, Maryland.” Special Agent Austin Moyer was then examined extensively about the content of the supporting application. At one point, appellant’s attorney solicited from the witness information extraneous to the warrant application and was brought up short by Judge Barrick, “Let me interrupt a moment, Mr. Lamb. As I understand the law as far as search warrants are concerned, we’ve got to decide it on the basis of what is within the four corners of the affidavit.” The central controversy swirled about the number and nature of items seized under the warrants.

The “returns” became important and the two “returns” were, by general agreement, incorporated into and made a part of Defendant’s Exhibits 1 and 9, which were the respective search warrants and accompanying applications. Although the magic words, “We hereby formally introduce the search warrants as exhibits,” may not literally have been uttered, the clear context of the entire suppression hearing makes it manifest that they were Defendant’s Exhibits 1 and 9, respectively: “MR. LAMB: Your Honor, may I point out something. We might as well make the return on the warrant part of Defendant’s Exhibit 1, the return on the warrant itself for Plyers Mill Road.

That’s only the warrant and the application. THE COURT: All right, put the return with it. You don’t have the return? ¹⁶⁴ MR. LAMB: No, Your Honor, I only have my copy of it.

MR. WERNER: Here it is. THE COURT: We’re putting the return with Exhibit [9] — we’re talking about — we’re connecting the report and return with the affidavit and the search warrant as Defendant’s Exhibit 1. MR.

LAMB: I want to be sure he’s looking at — THE COURT: Introduce the other search warrant with the affidavit — that’s [9]. MR. WERNER: Nine. MR.

LAMB: These are things he pulled out of the file as proffered by the State as being on the return. REDIRECT EXAMINATION BY MR. LAMB: Q. Agent, I show you what has been marked Exhibit 9 for identification and ask if you can identify it. A. Yes, sir, I can.

Q. What is it? A. Affidavit — application for search warrant, 3514 Plyers Mill Road, Kensington, Maryland. Q. With attachments and return? A. With attachments and return.” The ten-page Memorandum and Order of Judge Barrick, moreover, analyzes and recites extensively from the warrant applications.

Under the circumstances, Duggins v. State, 7 Md. App. 486 , 256 A. 2d 354 (where the State declined to produce a warrant, choosing instead to rely exclusively upon the testimony of arresting officers to establish the validity of the arrest); Campofreda v. State, 15 Md. App. 693 , 292 A. 2d 703 (where neither a warrant nor a completed copy was offered in evidence and where the “copy” actually read by the court was not signed and had a number of blank spaces); and Brooks, Keaton and Patterson v. State, 13 Md. App. 151 , ¹⁶⁵ 282 A. 2d 516 (where a second search warrant depended upon the validity of a first search warrant but did not incorporate the first application as a part of the second application), relied on by the appellant, are not remotely apposite. 6. Search and Seizure — No General Warrant A later contention (# 9) will deal specifically' with the appellant’s charge that the particularity clause of the Fourth Amendment was violated by the allegedly overbroad seizure of items during the actual executions of the two warrants. This contention confines itself to the facial character of the two warrants. It is claimed that their lack of adequate particularization in terms of “the things to be seized” condemns them as constitutionally forbidden general warrants, authorizing indiscriminate rummaging through the private papers of the appellant.

Animating our review, as we attempt to keep the emotionally highly-charged phrase “general warrant” in proper historical and semantic perspective, is Hignut v. State, 17 Md. App. 399, 417 , 303 A. 2d 173 : “We caution against a marked tendency of late toward a loose employment of the notion ‘general warrant’. In Harris and Schmitt v. State, 17 Md. App. 484 , 302 A. 2d 665 , Judge Scanlan traces perceptively the history of the ‘general warrant’ and its colonial counterpart, the ‘writ of assistance’. These parallel instruments of governmental oppression aroused great furor on both sides of the Atlantic throughout the 1760’s and 1770’s. They were a contributing spark to the American Revolution.

They were vivid in the apprehensive recollection of the constitution makers of the 1770’s and 1780’s, state and federal, who established protections to guard specifically against them. A decent respect for history and a careful use of language compels us to remember that the notion of a ‘general warrant’ did not contemplate every minor imprecision in draftsmanship giving rise to ¹⁶⁶ some arguable ambiguity or fleeting confusion. The ‘general warrant’ was a roving commission to police agents, in seeking out certain types of crime, to search anyone or any place, at any time, anywhere. The niggling complaint at bar is antipodal to the broad issue over which we fought a Revolution.

Magna Charta need not be invoked everytime a policeman dots the wrong ‘i’.” And see Frey v. State, 3 Md. App. 38, 46 , 237 A. 2d 774 . The heart of the appellant’s complaint is the use of the phrase “together with other fruits, instrumentalities and evidence of crime at this time unknown” to conclude the catalogue of things to be seized. A reading of the warrants in full, however, makes it apparent that the suspect phrase is tied explicitly to those items which might show a violation of the false pretenses law with respect to the sale of Lot 13T. The warrants, identical in terms of describing the things to be seized, are models of particularity.

They command the executing officers to seize: “. . . the following items pertaining to sale, purchase, settlement and conveyance of lot 13, block T, Potomac Woods subdivision, Montgomery County, Maryland: title notes, title abstracts, title rundowns; contracts of sale and/or assignments from Raffaele Antonelli and Rocco Caniglia to Mount Vernon Development Corporation and/or others; lien payoff correspondence and lien pay-off memoranda to and from lienholders and noteholders; correspondence and memoranda- to and from trustees of deeds of trust; lenders instructions for a construction loan or construction and permanent loan; disbursement sheets and disbursement memoranda; checks, check stubs and ledger sheets indicating disbursement upon settlement; correspondence and memoranda concerning disbursements upon settlement; settlement statements and settlement memoranda; fully or partially prepared deed of trust releases, ¹⁶⁷ whether or not executed and whether or not recorded; books, records, documents, papers, memoranda, and correspondence, showing or tending to show a fraudulent intent, and/or knowledge as elements of the crime of false pretenses, in violation of Article 27, Section 140, of the Annotated Code of Maryland, 1957 Edition, as amended and revised, together with other fruits, instrumentalities and evidence of crime at this time unknown.” We read the questioned phrase as referring to “other fruits, instrumentalities and evidence” of the crime of false pretenses with respect to Lot 13T. (We do not intimate, by any negative implication, that the result would necessarily be otherwise even if we read the phrase more broadly. It is simply unnecessary to this decision to consider such a question.) 7. Plain View Seizure of State’s Exhibit 10A Of all of the items seized which were not suppressed and which ultimately were received in evidence, only one (State’s Exhibit 10A) arguably was not particularly described by the warrants.

It was a deed of trust prepared on March 27, 1972, conveying certain lots from Clark-King to the F. O. Day Company as security for a $47,000 loan from F. O. Day Company to Clark-King. The significance is this. The new $47,000 loan had nothing to do with an earlier $37,000 loan from F. O. Day to Clark-King, also secured by an earlier deed of trust. The appellant instructed one of his secretaries to add the following words to the deed of trust: “Part of this deed of trust secures an existing deed in the amount of $37,000 upon which the recording tax was paid in Liber 3934, Folio 0772, therefore recording tax is due only on $12,000.” That was not true and was nothing but an attempt to lower the recording tax due Montgomery County.

Peter Hitchen, the Treasurer of the F. O. Day Company, had kept a photocopy of the original deed of trust without the added language. When he received a copy of the recorded deed of trust with the supplemental language, he noticed the ¹⁶⁸ discrepancy and notified the appellant of the impropriety. Hitchen fully informed Special Agent Joseph Lawrence of this entire matter and Agent Lawrence had this information in his recent memory when he executed one of the search warrants. In the course of his legitimate search of the files for the various particularly described items relating to Lot 13T, he came across this typed deed of trust and immediately recognized its significance.

(Hitchen’s copy was not sufficient because of the desire to make a typewriting analysis.) This is a classic instance of a Plain View Doctrine seizure — a recognized exception to the warrant requirement whereunder a prior valid intrusion for one purpose will legitimate the warrantless seizure of evidence of crime inadvertently spotted in plain view. Coolidge v. New Hampshire, 403 U. S. 443, 464-473 , 91 S. Ct. 2022 , 29 L.Ed.2d 564, 581-587 (1971); Warden v. Hayden, 387 U. S. 294 , 87 S. Ct. 1642 , 18 L.Ed.2d 782 (1967); Frazier v. Cupp, 394 U. S. 731 , 89 S. Ct. 1420 , 22 L.Ed.2d 684 (1969); Cady v. Dombrowski, 413 U. S. 433 , 93 S. Ct. 2523 , 37 L.Ed.2d 706 (1973); Brown v. State, 15 Md. App. 584 , 292 A. 2d 762 . After a painstaking review of the entire record of this lengthy and complicated trial, we would be derelict not to record our thoroughly deliberated alternative holding that even if there had been error in this regard (and we explicitly hold there was not), it was harmless beyond a reasonable doubt. Chapman v. California, 386 U. S. 18 , 87 S. Ct. 824 , 17 L.Ed.2d 705 (1967).

The significance of State’s Exhibit 10A went only to Counts 15, 16 and 17 of Indictment 3103, charging false pretenses upon Montgomery County, failure to pay the recordation tax and misrepresentation of a taxable consideration, respectively. These three counts were ultimately dropped by the State. The appellant, therefore, suffered no remote prejudice. 8. Search and Seizure — Probable Cause Indefatigably, the appellant has presented under the umbrella of this eighth contention, six subcontentions.

Several are ingenious, even if meritless. ¹⁶⁹ a. Object of the Search Warrant The appellant points to Art. 27, § 551, Search Warrants, as authorizing a search where probable cause has demonstrated that “any misdemeanor or felony is being committed by any individual or in any building, apartment, premises, place or thing.” (Emphasis added) He argues that the warrant applications of October 30, 1972, focus upon an alleged crime of false pretenses that was consummated and complete, by the very allegations in the warrant applications, on July 17, 1972. He reasons that on October 30, the crime was already an act of history and was not still being committed. Inadvertently (or advertently), the appellant did not read on in § 551, wherein the very next clause sets out the additional legitimate object of a search warrant: “or that any property subject to seizure under the criminal laws of the State is situated or located on the person of any such individual or in or on any such building, apartment, premises, place or thing.” That any evidence of past crime — including “mere evidence” in contrast to contraband, fruits or instrumentalities — is seizable under the Fourth Amendment was made clear by Warden v. Hayden, supra.

As Chief Judge Murphy also made clear in Salmon v. State, 2 Md. App. 513, 517-519 , 235 A. 2d 758 , the Fourth Amendment to the Federal Constitution, on the one hand, and Article 26 of the Maryland Declaration of Rights along with Art. 27, § 551, on the other hand, are provisions in pari materia and protect like rights in a like manner. b. Staleness of Probable Cause The thrust of this subcontention is that various observations of activity on the part of the appellant made significantly prior to October 30, 1972, even if such observations indicated criminal behavior then, did not yield the likelihood that evidence of such crime was still present on the appellant’s two business premises as late as October 30. The affiants upon the warrant applications were Special Investigators Austin Moyer and Joseph Lawrence. Their painstaking investigation which produced the two ¹⁷⁰ exemplary warrant applications before us took place throughout September and October of 1972.

On October 25, they interviewed George and Audrey Young and reduced the detailed recitations of the Youngs to six typewritten pages. The Youngs had been present for the crucial settlement in the appellant’s law office on July 17. The affiants checked the stock ledger sheets of Kensington Associates Realty, Inc. in late September and found that the company was owned by the appellant. At the end of September, the affiants checked the stock ledger sheets of the Mt.

Vernon Development Corporation — the seller of Lot 13T — and found that it was controlled by the appellant. One of the search warrants was for the 3514 Plyers Mill Road office of Mt. Vernon Development Corporation. John Sivers was interviewed in early September and confirmed the appellant’s ownership of Mt.

Vernon for his “own personal gain.” Robert Freedman, the General Counsel and Director of Standard Savings and Loan Association, was interviewed in October. Deborah Nalls, a special investigator trained in real estate law, checked the land records and discovered, inter alia multa, a release from the State National Bank on Lot 13T as late as October 3, 1972. Norman Hecht, the Vice President of Madison National Bank, was interviewed on October 27 and revealed that as of that time Lot 13T had not been released from the Lumsden trust. As an indication that files relating to the Potomac Woods lots generally and to the appellant’s records for Clark-King were still in the appellant’s offices in late October, 1972, the affiants interviewed William Hancock and E. Harold Patterson, owners of County-Wide Realty Company, on October 19.

They related that the appellant was scheduled to handle the settlement on Lot 13S (also in the Potomac Woods subdivision) “within the next few weeks or so.” Peter Hitchen, the Comptroller of F. O. Day Company, was interviewed on October 19 and turned over papers prepared by the appellant relating to Lot 13S as late as September 26. Mel Clark was interviewed on October 19 and turned over the books and records of Clark-King. He indicated that as of ¹⁷¹ that time the appellant was still acting as his settlement attorney. We cannot doubt that the probable cause was not simply abundant but vitally fresh.

Taylor v. State, 17 Md. App. 536 , 302 A. 2d 646 , relied on by the appellant, is not remotely applicable. There, a lapse of thirty days between a single observation and the issuing of a search warrant for a pool hall rendered the probable cause fatally stale. The single observation, however, had been of a hypodermic syringe being passed from one customer to another. The heart of our holding there did not go to the time factor as such but to the lack of a logical link between an isolated customer’s act and the host premises: “The sole observation by the informant of two patrons of Brownie’s Pool Hall passing a hypodermic syringe between them does not, in and of itself, give rise to a rational inference that narcotics were being kept or stored in the premises any more than a single observation of a lottery slip being passed between two customers of a restaurant would give rise to a rational inference that an illegal gambling operation was being conducted in that restaurant.” Id. at 17 Md. App. 543 .

The general rule as to staleness was set forth for this Court by Judge Anderson in Johnson v. State, 14 Md. App. 721, 729-730 , 288 A. 2d 622 : “There is no statute in this State providing that the facts in the application, set forth to establish probable cause, must result from observations made within a designated time before the issuance of the warrant. Nor do we find any cases which lay down a rigid rule. However, the remoteness of the facts observed from the date of the issuance of the warrant is an element to be considered in each instance by the issuing authority in determining whether it appears that there was probable cause. ¹⁷² Clayton v. State, 1 Md. App. 500, 503 . The issue, therefore, is whether this lapse of 26 days between the observation of the facts and the issuance of the warrant, was so remote, when considered in the circumstances of this case, so as to invalidate the search warrant.

Clayton v. State, supra, at 504. See Varon, supra, at 322; 100 A.L.R.2d 525 .” And see Rosenblatt, “ ‘Stale’ Probable Cause in Search Warrants,” Search and Seizure Law Report, Vol. 1, No. 4, (February, 1974); State v. Edwards, 266 Md. 515 , 295 A. 2d 465 ; United States v. Johnson, 461 F. 2d 285 (10th Cir. 1972); United States v. Harruff 352 F. Supp. 224 (E.D. Mich. 1972); United States v. Cotham, 363 F. Supp. 851 (W.D. Texas 1973); United States v. Guinn, 454 F. 2d 29 (5th Cir. 1972); United States v. Harris, 482 F. 2d 1115 (3rd Cir. 1973). The ultimate criterion in determining the degree of evaporation of probable cause, however, is not case law but reason. The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc. The observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later.

The hare and the tortoise do not disappear at the same rate of speed. The massive records and files of the appellant-attorney and his protean corporate extensions in this case are more akin to the latter than to the former. In terms of non-staleness, the probable cause here was still as the first dew of the morn. c. A ttempt to Controvert Truth of Warrant App lications Although nothing suggested by the appellant’s brief or at oral argument indicates that he ever successfully derogated ¹⁷³ by one whit either the truth or the accuracy of any of the hundreds of facts set forth in the warrant applications, the controlling answer to this subcontention is that in Maryland a reviewing court ■— at the hearing level, trial level or appellate level — may not look “beyond the four corners of the affidavit.” Smith v. State, 191 Md. 329, 335 , 62 A. 2d 287 ; Collins v. State, 17 Md. App. 376 , 302 A. 2d 693 ; Everhart v. State, 20 Md. App. 71, 81-82 , 315 A. 2d 80 .

The appellant’s reliance upon Carter v. State, 18 Md. App. 150 , 305 A. 2d 856 , for the proposition that a reviewing court may go “beyond the four corners of the affidavit” is bizarre, since in that case there was neither a warrant nor a supporting affidavit. The appellant’s present use of the Court of Appeals decision in Clark-King Construction Co. and Andresen v. Salter, et al., 269 Md. 494 , 307 A. 2d 485 , decided on July 20, 1973, not for its legal principle but as proof of a fact in an attempt to vitiate one ostensibly contrary fact in the warrant applications, is inappropriately after-the-fact. That decision came down after the warrant applications were prepared (and, indeed, after both the pre-trial suppression hearing and the trial itself had been completed). d. Probability as to the Two Locations Searched This subcontention assumes probable cause for the existence somewhere of evidence of false pretenses but challenges the probability of either 3700 Decatur Avenue or 3514 Plyers Mill Road being that “somewhere.” Equating “probable cause” or “probability” with “more likely to be true than not” or “a greater than 50 per cent chance,” the appellant reasons cleverly that although probable cause may exist that the evidence sought is “in A or B,” who can say with the requisite degree of probability which?

(If the evidence is “probably” at 3700 Decatur Avenue, is it not a necessary implication that it is “probably not” at 3514 Plyers Mill Road and vice versa? “How could the same particular documents sought be present at two different locations?” May a known diamond thief hold out two clenched fists, turned down as in a childhood game, and challenge the police to say with probability whether the stolen gem is in his right ¹⁷⁴ hand or in his left?) Leaving for another day the rich metaphysical possibilities in articulating why such an absurd but titillating proposition cannot be the law, it is enough for present purposes to hold that there was probable cause to believe that some of the evidence sought was in each of the two locations. The settlements were held at 3700 Decatur Avenue. That was the appellant’s law office and the logical (probable) repository for his files and records. We note, moreover, that at least three of the exhibits offered in support of the warrant applications show that copies were to be mailed to the appellant at 3700 Decatur Avenue.

With respect to 3514 Plyers Mill Road, that was the office of the Mt. Vernon Development Corporation, which was “controlled” by the appellant and which sold Lot 13T to Standard-Young Associates. The application for 3514 Plyers Mill Road contained all of the facts contained in the companion application and a few additional ones as well. On September 26, 1972, Agent Moyer went to 3514 Plyers Mill Road and there observed Charles G. Bieber conducting business at a desk and over a phone.

Bieber had been the signatory for Mt. Vernon in purchasing Lot 13T from Antonelli and Caniglia and in selling Lot 13T to Standard-Young Associates. The sales contract with the former listed the “address of the purchaser” as 3514 Plyers Mill Road. June Stup, the appellant’s secretary in his law office at 3700 Decatur Avenue, confirmed that Bieber and Mt.

Vernon operated out of 3514 Plyers Mill Road. Carl Zentz, employed as a title searcher and then as a supervisor of all searchers by the appellant, confirmed that various “title notes, title abstracts, and title rundowns prepared for” the appellant are “normally and typically kept” in both locations. e. Veracity of Non-Swearing Informants The appellant contends that little, if any, of the information in the applications comes directly from the two affiants, but rather is hearsay from a wide number of off-warrant declarants — secondary sources — informants. ¹⁷⁵ That observation is accurate. He then challenges the veracity of these informants under Aguilar v. Texas, 378 U. S. 108 , 84 S. Ct. 1509 , 12 L.Ed.2d 723 (1964).

The point, though ingenious, need not detain us long. “That a different rationale must exist for establishing the reliability of citizen-informers than for establishing that of the more suspect and anonymous police informer is widely recognized in recent case law.” King and Mobley v. State, 16 Md. App. 546, 555 , 298 A. 2d 446 , quoted with approval in Mobley and King v. State, 270 Md. 76, 85 , 310 A. 2d 803 . As was said in Dawson v. State, 14 Md. App. 18, 33 , 284 A. 2d 861 (concurring opinion): “. . . it is implicit in the Supreme Court’s treating of Aguilar-Spinelli problems that the rules set out for establishing an informant’s credibility are aimed primarily at unnamed police ‘informers’ rather than at that broad class of secondary sources who are the victims of crime, the disinterested witnesses of crime, other disinterested civilian sources of information or other law enforcement officers. The members of this broad class are generally, but not universally, named. They are not from the criminal milieu.” In the present case, the secondary sources of information were all named and identified.

See United States v. Ventresca, 380 U. S. 102 , 85 S. Ct. 741 , 13 L.Ed.2d 684 (1965) and Rugendorf v. United States, 376 U. S. 528 , 84 S. Ct. 825 , 11 L.Ed.2d 887 (1964). George and Audrey Young were the secretary and president, respectively, of the victimized company. Ira Burdette was the general superintendent for the appellant’s construction business. John Sivers was a corporation president.

Robert Freedman was general counsel and director of a savings and loan association. Frank Marsalek was executive vice president of a land title corporation. Charles Bieber worked for Mt. Vernon Development Corporation.

June Stup was the appellant’s secretary. Carl Zentz was the appellant’s title searcher. Bruce Covert and Norman Hecht were vice presidents of ¹⁷⁶ banks. Deborah Nalls was a real estate law expert assigned to the Bi-County Fraud Unit.

We are persuaded that none of the informants were anonymous police informers “from the underworld milieu” but were rather either “victims of crime, the disinterested witnesses of crime, other disinterested civilian sources of information or other law enforcement officers.” As we said in Dawson v. State, 11 Md. App. 694, 699 , 276 A. 2d 680 : “The practical distinction is that in dealing with a named source, the very