dissenting:
I dissent.
Based upon the widely recognized rule that a charge must allege all of the material elements of the offense, the supreme court held in Abrams that a battery charge must allege that the victim either caused bodily harm or was of an insulting or provoking nature. In People v. Williams (1972), 52 Ill. 2d 455, 288 N.E.2d 406, however, that court ruled that in alleging attempted aggravated kidnapping the charge need not set forth all of the elements of the substantive offense attempted. No supreme court case has been called to our attention which states whether the same rule is applicable to a charge of an aggravated offense where as here the charge names the offense sought to be aggravated. In Latham, the appellate court for the Fifth District ruled that all of the elements of the battery upon which the aggravated battery is based must be alleged and ruled the aggravated battery charge before it to be defective for failure to state whether the conduct charged was done knowingly or intentionally and whether the contact with the victim caused bodily harm or was of an insulting and provoking nature. In People v. Tucker (1973), 15 Ill. App. 3d 1003, 305 N.E.2d 676, on the other hand, the appellate court for the First District held that an aggravated battery charge which alleged that the accused committed a battery did not need to allege that he committed the acts intentionally or knowingly because that was implied by definition from the battery alleged. As I subsequently discuss, the court in Haltom distinguished that case from Tucker.
In People v. DePratto (1976), 36 Ill. App. 3d 338, 343 N.E.2d 628, another division of the appellate court for the First District passed upon the sufficiency of a count which stated that on a date the accused committed aggravated battery “in that in committing a battery upon Daniel C. Fuesz used a deadly weapon in violation of” section 12— 4(b) (1). That opinion indicates that objection was made only to the failure of the count to allege that the accused’s conduct was knowing or intentional. The court ruled that the count was sufficient because the allegation that the accused committed a battery implied that he did so knowingly or intentionally. That count was substantially the same as count I in the instant case. The allegation that the defendant here committed a battery would likewise imply that he either made contact causing bodily harm or did so in an insulting or provoking manner. I consider the reasoning of the First District to be the more persuasive and consider count I to charge aggravated battery.
Count II presents a more complicated problem because it attempts to charge aggravated battery under section 12 — 4(b)(6). In Meints we ruled that a person “harmed” or “battered” under section 12 — 4(b) (3 to 9) may be either one receiving bodily harm or one receiving contact of an insulting or provoking nature. In People v. Crane (1971), 3 Ill. App. 3d 716, 279 N.E.2d 134, and People v. Nance (1975), 26 Ill. App. 3d 182, 324 N.E.2d 652, on the other hand, the Fifth District of the appellate court has ruled that the term “harmed” in those sections has reference only to a victim receiving bodily harm not one merely receiving contact of an insulting and provoking nature. The Haltom court adopted the Crane and Nance interpretation of section 12 — 4(b) (3 to 9) and ruled defective counts which failed to allege whether the battery which was the basis for the aggravated battery charge was one arising from the infliction of bodily harm or from contact of an insulting and provoking nature. The rationale of the Haltom decision was that the battery alleged might be one based only upon contact of an insulting or provoking nature and thus not the foundation for a charge of aggravated battery under section 12— 4(b) (6). The court distinguished its decision from that in Tucker upon the basis that in Tucker the allegation that a battery was committed necessarily implied that the accused’s conduct was intentional or knowing whereas the allegation of a battery in Haltom would not necessarily imply the type of a battery required by Crane and Nance as the basis for a section 12 — 4(b) (6) charge. Under the Meints interpretation either type of battery would be sufficient to support a section 12 — 4(b)(6) charge and an allegation that the accused committed a battery would imply conduct sufficient to support such a charge. I deem count II to also be sufficient.
I would affirm.