APPEAL from the Circuit Court of McLean County; the Hon.
LELAND SIMKINS, Judge, presiding.
MR. PRESIDING JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
A jury convicted defendant of aggravated battery upon counts of an indictment alleging as Count III, a battery causing great bodily harm; Count IV, a battery using a deadly weapon and Count V, a battery committed "without legal justification" knowing that one Kelley was a peace officer engaged in the execution of his official duties. Sentence of three to six years was imposed upon the charge alleging a battery causing great bodily harm.
Acting upon a report of an observed burglary, Kelley, a state trooper, stopped defendant and one Hussey on the highway. During the course of an arrest, defendant and Hussey seized Kelley, took his sidearm and attempted to shoot him and did beat Kelley with the weapon causing substantial head injuries.
• 1 Upon appeal it is urged that the Count III of the indictment upon which sentence was imposed is void for the reason that such count failed to allege that the battery causing great bodily harm was "without legal justification".
Ill. Rev. Stat. 1969, ch. 38, par. 12-4, defining the offense of aggravated battery does not contain the words "without legal justification". It is argued, however, that "battery" as defined in ch. 38, par. 12-3, is in the language:
"A person commits battery if he intentionally and knowingly without legal justification and by any means, (1) causes bodily harm * * *".
and that since aggravated battery is phrased in terms of one "(W)ho, in committing a battery causes great bodily harm * * *", the words "without legal justification" must necessarily be alleged to charge a battery in the degree of aggravated battery.
Historically, in the sense of the common law and of our prior Criminal Code, "justification" for battery in the sense of exoneration was stated in terms of a defense. Such defenses were directed essentially to defense of the person, property and the making of arrests. 5 C.J. 742, Assault and Battery, pars. 223 et seq.
Under the former Criminal Code, ch. 38, par. 56:
"Assault and battery is the unlawful beating of another."
This language was extended by construction to include any unlawful touching.
In People v. Cantwell, 253 Ill. 57, 97 N.E. 287, it was held that an information was not defective for failure to allege that the beating was "unlawful". Such conclusion was founded upon cited texts and cases under the common law.
In a civil action for assault and battery, it was held to be unnecessary to allege that the act was "unlawful". (Smith v. Georgeoff, 329 Ill. App. 444, 69 N.E.2d 525.) It is not unreasonable to consider that the words "without legal justification" are synonymous with the word "unlawful" of the former statute.
In People v. Johnson, 114 Ill. App.2d 415, 252 N.E.2d 674, it was said that justification for the use of force was an affirmative defense under Ill. Rev. Stat. 1969, ch. 38, par. 7-14. See also People v. Nation, 73 Ill. App.2d 438, 219 ...