State v. Polk, 7526SC996
| Decision Date | 05 May 1976 |
| Docket Number | No. 7526SC996,7526SC996 |
| Citation | 29 N.C.App. 360,224 S.E.2d 272 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. James Kirby POLK. |
Atty. Gen. Rufus L. Edmisten by Associate Atty. Norma S. Harrell, Raleigh, for the State.
Gene H. Kendall, Charlotte, for defendant appellant.
The defendant assigns as error the denial of his motions for judgment as of nonsuit made at the close of the State's evidence and at the close of all the evidence.
Evidence offered by the State tended to show the following: Lloyd E. Miller, a patrolman for the Charlotte Police, was in his apartment at approximately 3:00 a.m. on 22 March 1975 packing clothes for a fishing trip when he heard a noise outside 'which sounded like metal hitting metal'. He put on a pair of bluejeans and a T-shirt and walked outside to investigate. He carried his .22 calibre pistol, his keys, and his wallet. Once outside he noticed two men in the parking lot squatting behind a car owned by Mr. Van Johnson, the apartment manager. The defendant, who was one of the men, was at the rear of the car. The other man was at the other end of the car, separated from the defendant by the length of the automobile. Miller noticed that two of the tires on the car were flat and another was going flat. He 'told the men to stand up, that he was a police officer'. The defendant stood and, at the direction of Miller, put his hands on his head, but the other man fled. Miller pointed his gun at the defendant, took out his wallet, and identified himself with his identification card as being a police officer. He patted the defendant down, then told him they were going to see Johnson. When they were across the parking lot almost to the adjacent apartment building, Miller heard a noise behind him and turned around. The defendant 'jumped the gun'. The wrestled and went into the bushes, 'and the defendant came up with the gun'. Miller told the defendant to put down the gun, that he was a police officer. The defendant told Miller he was going to blow his head off, and as they stood about three feet apartThe defendant cocked the gun and fired two shots at Miller's head. Miller ducked but one of the bullets grazed his shoulder. The defendant then fled.
Evidence for the defendant tended to show that the defendant and his wife were returning from a party at about 3:00 a.m. When they arrived home the defendant parked his car in the space assigned to him, next to Johnson's car. His wife went directly into the apartment while the defendant delayed in order to lock his car. When he finished he heard a noise, like air seeping, and noticed that Johnson's car had a flat tire. He looked to see if the tires had been cut and heard someone say, 'Hold it.' As he stood and turned around he saw someone else run from the other end of the car. The defendant testified that Miller did not identify himself as a police officer, that he did not know who Miller was, and that he was scared he might be shot or robbed by Miller. He walked toward Miller with his...
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State v. Cunningham
...cases, State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970); State v. Fletcher, 268 N.C. 140, 150 S.E.2d 54 (1966); State v. Polk, 29 N.C.App. 360, 224 S.E.2d 272 (1976), none of which are applicable. When a person has been placed under arrest by an officer, as happened in this case, the p......
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State v. Anderson
...the traditional case authority recognizing the right of an individual to defend himself from an unlawful assault. See State v. Polk, 29 N.C.App. 360, 224 S.E.2d 272 (1976). Defendant here urges that, in defining the right, if any, of a third person to interfere in an arrest, we follow the p......
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State Carolina v. William David Whetstone.
...force, and therefore, in certain circumstances, does not necessitate a deadly force jury instruction. See State v. Polk, 29 N.C.App. 360, 361–62, 224 S.E.2d 272, 273 (1976) (When the defendant fired shots from a gun “in order to scare” his attacker, but did not use deadly force, he was enti......
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