{
  "id": 2839249,
  "name": "The People of the State of Illinois, Plaintiff-Appellee v. Gordon Hussey, Defendant-Appellant",
  "name_abbreviation": "People v. Hussey",
  "decision_date": "1972-02-17",
  "docket_number": "No. 11391",
  "first_page": "955",
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    "id": 8837,
    "name": "Illinois Appellate Court"
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      "cite": "3 Ill.App.3d 774",
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  "last_updated": "2023-07-14T16:53:03.474127+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee v. Gordon Hussey, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE SMITH\ndelivered the opinion of the court:\nHow to charge the offense of battery is the single question posed by this appeal. Specifically, is the phrase \u201cwithout legal justification\u201d part of the definition at least for charging purposes. The statute making such conduct an offense includes such phrase:\n\u201cA person commits battery if he intentionally or knowingly without legal justification and by any means (1) causes bodily harm to an individual or * * *.\u201d\nDefendant was charged with aggravated batteiy, which is a battery causing \u201cgreat bodily harm\u201d as distinguished from just \u201cbodily harm\u201d, the adjective \u201cgreat\" being the distinguishing feature, at least as to one aspect of this offense. The charge read that on a certain day, in a certain place, defendant \u201ccommitted the offense of aggravated battery in that while then and there committing the battery he did intentionally cause great bodily harm to [a named person] in violation of Ill. Rev. Stat. 1969, ch. 38, par. 12 \u2014 4\u201d. As can be seen, the phrase \u201cwithout legal justification\u201d is absent from the charge and the defendant argues that he was therefore convicted of nothing at all, as no offense or crime was charged \u2014 that aggravated battery encompasses definitionally the idea that such must be \u201cwithout legal justification\u201d.\nIt might be said that the statutory definition answers the question\u2014 since it is in the statute, it is, ipso facto, part of the definition, and therefore must be included in the charge. Indeed, there are expressions to that effect, though not binding upon us in the context rendered. In People v. Whelan, (Ill.App.2d), 267 N.E.2d 364, this same question, more or less, was raised, though thereafter rendered moot by confession of error. It involved the offense of assault where a similar phrase is found in the statutory definition \u2014 \u201cwithout lawful authority\u201d. The court noted, even though moot, that since the definition of assault read \u201cwithout lawful authority\u201d, it became an essential element which must be included in the charge \u2014 as the Code of Criminal Procedure requires that a charge set forth the essential elements of an offense. (Ill. Rev. Stat. 1959, ch. 38, par. 111\u20143.) The reasoning is persuasive, but as we shall see, we conclude otherwise. Though not raised as such in People v. Grieco, 44 Ill.2d 407, 255 N.E.2d 897, it was observed that the battery statute \u201cset forth all elements necessary to constitute the offense intended to be punished, viz., causing bodily harm to an individual, intentionally and knowingly without legal justification\u201d. Naturally, if the precise point had been raised, Grieco would be binding on us \u2014 but the court was concerned with the question of whether a charge of battery need allege the \u201cmeans\u201d used. It concluded otherwise.\nIt seems to us that the definition of battery is complete absent this phrase \u2014 \u201cwithout legal justification\u201d, or to phrase it differently, the idea expressed therein, being a negative, is not one of the \u201cessential elements\u201d. An excess of caution may have occasioned its inclusion, regardless the definition is quite complete without the \u201cwithout\u201d, and while we appreciate the reasons for its cautionary inclusion, it is, in our opinion, still not an integral or material part of the definition. Rather, it is eluciatory \u2014 an attempt to clearly express the ideal that while certain types of battery may take place, as in \u201c(1)\u201d above, it would not be a crime if certain affirmative defenses \u2014 or certain circumstances exist. The section on \u201cjustifiable use of force \u2014 exoneration\u201d is replete with situations where a battery is justified. (Ill. Rev. Stat. 1959, ch. 38, par. 7 \u2014 1, et seq.) Consent too justifies a battery, or rather, excuses it, as in a boxing match, football game, or being jostled on a crowded bus.\nThe offense of battery (or aggravated battery), we think is defined and charged when it is said that the accused intentionally or knowingly caused (great) bodily harm, and that the phrase \u201cwithout legal justification\u201d neither adds nor detracts from that definition. It is implicit in the definition, indeed, it is implicit in the word \u201cbattery\u201d. A \u2018battery\u2019 whch is legally justified is not a \u201cbattery\u201d. As we pointed out in Grieco, a battery is the wilful touching of the person of another by the aggressor, or some substance put in motion by him \u2014 it is the consummation of an assault. Inclusion of the phrase is surplusage, in the sense that evidence which evidences justification is admissible even absent this allegation.\nAnalogous in our context is the phrase \u201cpeace of the people\u201d with regard to the deceased in the definition of murder prior to the rewrite in the Criminal Code of 1961 which replaced such phrase with the one present here \u2014 \u201cwithout lawful justification\u201d. (Ill. Rev. Stat. 1969, ch. 38, par. 9 \u2014 1.) In People v. Capello, 282 Ill. 542, 551, in discussing a People\u2019s instruction defining \u201cpeace of the People\u201d, it was observed that the allegation the victim of the homicide was in the \u201cpeace of the people\u201d is not and never was necessary. Significant too, is the absence of the phrase in the IPI Criminal Instructions relating to battery \u2014 Sec. 11.05, et seq.\nA bit of history will give added credence to our conclusion. At common law, and prior to the Criminal Code of 1961, justification for battery was stated in terms of an affirmative defense. (5 CJ 742, Assault and Rattery par. 223 et seq.) The statutory definition then was simply \u201cAssault and battery is the unlawful beating of another\u201d. It is certainly reasonable to equate \u201cunlawful\u201d with \u201cwithout legal justification\u201d. If we are right in our conclusion that the phrase, \u201cwithout legal justification\u201d is redundant so far as defining the crime or charging it, then the same could be said for the exclusion of \u201cunlawful\u201d in charging battery prior to the advent of our present Criminal Code. Such is precisely the case. In People v. Cantrell, 253 Ill. 57, 97 N.E. 652, it was held that an information was not defective for failure to allege that the assault and battery was \u201cunlawful\u201d.\nIn the charge before us, all of the elements of the offense were contained, and they certainly advised the defendant of the charge against him, enabled him to prepare a defense, and if it should be necessary, to plead the same in bar to a subsequent prosecution \u2014 reasons often advanced to determine the sufficiency, hence the certainty of a charge.\nDefendant was sentenced to a term of seven to ten years. He suggests as more fitting a minimum sentence of four. He characterizes the seven to ten as \u201cpunitive\u201d. It is certainly that, but not in the pejorative sense in which he uses it. We note, but not in passing, two prior sentences to the penitentiary in 1962 and 1965 for burglary and robbery. Under the circumstances, the sentence given was fully justified. Accordingly, we affirm the judgment.\nJudgment affirmed.\nTRAPP, P. J., concurs.",
        "type": "majority",
        "author": "Mr. JUSTICE SMITH"
      },
      {
        "text": "Mr. JUSTICE CRAVEN\nconcurring in part and dissenting in part:\nI agree that the conviction should be affirmed. Such is based upon my specially concurring opinion in People v. Harvey, 3 Ill.App.3d 774, 278 N.E.2d 417.\nI am unable to agree that the sentence of the trial court should be affirmed. The sentence is contrary to the theory and policy of indeterminate sentences; is contrary to the theory and policy expressed in the Standards of the American Ear Association relating to sentences; and it substantially divests the parole board of its discretionary authority to determine the optimum release date in accordance with the defendant\u2019s behavior and rehabilitation during his incarceration. See People v. Scott, 117 Ill.App.2d 344, 253 N.E.2d 553.",
        "type": "concurring-in-part-and-dissenting-in-part",
        "author": "Mr. JUSTICE CRAVEN"
      }
    ],
    "attorneys": [
      "Donald B. Mackay, and John F. McNichols, of Defender Project, both of Springfield, for appellant.",
      "Paul R. Welch, State\u2019s Attorney, of Bloomington, for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee v. Gordon Hussey, Defendant-Appellant.\n(No. 11391;\nFourth District\nFebruary 17, 1972.\nCRAVEN, J., concurring in part and dissenting in part.\nDonald B. Mackay, and John F. McNichols, of Defender Project, both of Springfield, for appellant.\nPaul R. Welch, State\u2019s Attorney, of Bloomington, for the People."
  },
  "file_name": "0955-01",
  "first_page_order": 975,
  "last_page_order": 978
}