APPEAL from the Circuit Court of Vermilion County; the Hon.
JAMES K. ROBINSON, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendant appeals his convictions, entered upon jury verdicts, of the offenses of aggravated battery (Ill. Rev. Stat. 1973, ch. 38, par. 12-4(b)(1) and 12-4(b)(6)), and the sentence of one to five years imposed.
• 1 An issue upon appeal is whether the indictments are void for failure to charge the respective offenses. The defendant filed a motion in arrest of judgment alleging that the indictment "does not charge an offense." (Ill. Rev. Stat. 1973, ch. 38, par. 116-2(b)(1).) The motion was denied. A motion in arrest of judgment preserves for review the issue of whether the indictment sufficiently set forth the nature and elements of the offense charged. (People v. Haltom (1976), 37 Ill. App.3d 1059, 347 N.E.2d 502, appeal denied, 63 Ill.2d 559.) A motion in arrest of judgment preserves the question of whether the indictment charges an offense to the trial court and thus is distinguished from those cases where the issue is first raised upon appeal. People v. Pujoue (1975), 61 Ill.2d 335, 335 N.E.2d 437.
Count I of the indictment alleged that defendant:
"* * * committed the offense of AGGRAVATED BATTERY, in that he did knowingly and without legal justification in committing a battery on Dan Wilson used a deadly weapon, to-wit; a firearm, in violation of * * * Chapter 38, Section 12-4(b)(1), * * *."
Count II alleged that defendant:
"* * * committed the offense of AGGRAVATED BATTERY, in that he did knowingly and without legal justification, in committing a battery on Dan Wilson, then and there knew Dan Wilson, the individual harmed, to be a Peace Officer engaged in the execution of official duties, in violation * * * Chapter 38, Section 12-4(b)(6), * * *."
In People v. Abrams (1971), 48 Ill.2d 446, 271 N.E.2d 37, the court examined two complaints charging a battery. Section 12-3 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 12-3), defines battery as:
"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."
That opinion determined that the complaints were fatally defective and the convictions were reversed because such complaints failed to charge either of the alternative elements of the offense, i.e., that the physical contact caused bodily harm or that the physical contact was of an insulting or provoking nature. So, in People v. Latham (1973), 13 Ill. App.3d 371, 299 N.E.2d 808, it was held that an indictment was insufficient to charge aggravated battery where it failed to charge either of the alternative elements constituting the offense of battery. Again, in People v. Haltom (1976), 37 Ill. App.3d 1059, 347 N.E.2d 502, appeal denied, 63 Ill.2d 559, it was held that an indictment charging aggravated battery would be reversed when it:
"* * * failed to allege either of the alternative elements of battery was held to be fatally defective." 37 Ill. App.3d 1059, 1062, 347 N.E.2d 502, 504.
The Haltom opinion stated that the pleading of the word "battery" in each count of the indictment can not be said to "necessarily incorporate" either of the alternative disjunctive elements of battery.
• 2, 3 Defendant argues that count II includes the phrase "the individual harmed" and that the use of a form of the word "harmed" sufficiently connotes actual physical harm under the requirements of Haltom. In People v. Meints (1976), 41 Ill. App.3d 215, 355 N.E.2d 125, this court held that the word "harmed" was not restricted to physical harm but rather included "physical contacts of an insulting or provoking nature." As pleaded here, the allegation made is at best the pleading of a conclusion rather than the pleading of the fact of physical harm.
We find that in People v. DePratto (1976), 36 Ill. App.3d 338, 343 N.E.2d 628, the court held that an indictment alleging that defendant "committed the offense of aggravated battery, in that he, in committing a battery * * * used a deadly weapon, in violation of Chapter 38, Section 12-4(b-1) * * *" was not fatally defective. The only question presented to the court, however, was whether the indictment was defective by reason of the failure to ...