specially concurring:
I am persuaded that the statutory plan discussed in the majority opinion contemplates that the justified use of force is an affirmative defense and once raised by the defendant and some evidence introduced thereon, it then becomes the duty of the State to negate it beyond a reasonable doubt and the jury would be instructed with reference to justification. The phrase “without legal justification” therefore does not become an element of the offense of aggravated battery.
Thus, while I concur with the result reached in the majority opinion, I think our opinion should specifically relate the existence of a conflict between this district and the 2nd District and 5th District. In addition, in People v. Grieco, 44 Ill.2d 407, 255 N.E.2d 897, the court had before it the issue of whether or not it was necessary that an indictment alleged the means by which a battery was accomplished. The court held that such was not required. In discussing the necessary elements of the indictment, however, the court noted that the term “battery” was one of common usage and understanding and that the statute “itself set fourth all elements necessary to constitute the offense intended to be punished, viz., causing bodily harm to an individual intentionally and knowingly without legal justification.” (Emphasis supplied.) “Viz.” is an abbreviation for videlicet and is ordinarily read as “namely”; thus, the court by dicta says that without legal justification is an element of the offense of battery. Since aggravated battery is defined in terms of battery, an indictment enumerating the elements of aggravated battery would of necessity address itself to elements found in battery.
The 2nd District opinion in People v. Whelan, (Ill. App.2d), 267 N.E.2d 364, is a specific holding, aided by a confession of error by the People which the appellate court was free to accept or reject, that “without legal justification” was a necessary element and had to be included in the indictment. The 5th District in the case of People v. McCaughan, (Ill.App.2d), (N.E.2d), General No. 71-9, specificaUy held that “without legal authority” was a necessary element of assault as statutorily defined and that an information was required to include such allegation in order to state an offense.