APPEAL from the Circuit Court of Livingston County; the Hon.
SAMUEL G. HARROD III, Judge, presiding.
MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
The defendant, Kenneth Meints, was charged in a two count indictment with the offense of aggravated battery. Count I alleged that:
"* * * he did intentionally and knowingly, without legal justification, cause bodily harm to Deputy John Wiles, by striking him on his face, and knocking him to the ground with his fists, knowing Deputy Wiles to be a peace officer engaged in the execution of his official duties, in violation of section 12-4(b), Chapter 38, of the Illinois Revised Statutes."
"* * * he did intentionally and knowingly, without legal justification, make physical contact of an insulting and provoking nature with John Wiles, a Deputy Sheriff, by striking him on his face and knocking him to the ground with his fists, knowing Deputy Wiles to be a peace officer engaged in the execution of his official duties, in violation of section 12-4(b), Chapter 38 of the Illinois Revised Statutes."
At the time of trial, on September 16, 1974, after voir dire had been completed, defense counsel announced to the court that the defendant wished to withdraw his plea of not guilty to Count II of the indictment and to substitute a plea of guilty.
After the appropriate admonitions were given the court accepted the plea of guilty and entered judgment as to Count II of the indictment. The prosecutor then moved to dismiss Count I of the indictment, and the court approved.
At the sentencing hearing, on October 23, 1974, a presentence report disclosed that the defendant was then serving two concurrent terms of 3 to 9 years for burglary and conspiracy and one concurrent term of 1 to 3 years for theft. The defendant, Kenneth Meints, and his father, Elmer Meints, testified in mitigation that the offense had arisen out of a dispute between the father and the son, in which the father had requested that a police officer go to Kenneth Meints' home to talk to him. Approximately nine officers went to the defendant's home where an altercation occurred in which the defendant struck deputy Wiles, knocking him to the ground.
In sentencing the defendant, the court stated:
"The court does not believe that the nature and circumstances of the offense, or the history and character of the defendant would indicate that the court should set a sentence higher than the minimum; and the court does sentence the defendant to the minimum sentence for this offense of not less than one and not more than three years, but the sentence will be consecutive to any present sentences."
The defendant contends that the degree of the offense must be reduced because the indictment does not charge the offense of aggravated battery, but charges the lesser offense of battery. The State disagrees, and urges that the defendant waived this issue because he made no objection to the indictment in the trial court. The State further contends that the indictment was sufficient to fully apprise defendant of the offense charged, enabled him to prepare a defense, and will protect him from future prosecutions arising from the same conduct.
Battery is defined in the Illinois Criminal Code as:
"(a) A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual." Ill. Rev. Stat. 1973, ch. 38, par. 12-3(a).
Conduct constituting aggravated battery, and the penalty therefor is described in section 12-4(b)(6) of the Criminal Code (Ill. Rev. ...