Defendant maintains that the State's interpretation makes the statute one of absolute liability without requiring a mental state and is so vague as to be unconstitutional. She further contends that her interpretation is technically correct and that this court so indicated in People v. Holmes (1973), 13 Ill. App.3d 955, 301 N.E.2d 316. Defendant's contentions must be examined in the light of the Criminal Code of 1961 (Ill.
Therefore in compliance with our decision in Chupich we hold that defendants may avail themselves of the provisions of the Unified Code of Corrections which mitigate their minimum sentences, for their direct appeals were not finally adjudicated as of the effective date of that statute. See also People v. Brady, 14 Ill. App.3d 830, 303 N.E.2d 528 (1973); People v. Hunter, 14 Ill. App.3d 879, 303 N.E.2d 482 (1973); People v. Holmes, 13 Ill. App.3d 955, 301 N.E.2d 316 (1973); People v. Kennel, 13 Ill. App.3d 446, 300 N.E.2d 529 (1973); People v. Havener, 13 Ill. App.3d 312, 300 N.E.2d 43 (1973); People v. Silagy, 13 Ill. App.3d 339, 300 N.E.2d 30 (1973); People v. Grimes, 10 Ill. App.3d 1017, 295 N.E.2d 501 (1973); People v. Nicks, 62 Ill.2d 350, 342 N.E.2d 360 (1976); People v. Williams, 60 Ill.2d 1, 322 N.E.2d 819 (1975); and People v. Morgan, 59 Ill.2d 276, 319 N.E.2d 764 (1974). Also, any error in sentencing can be raised at any time.
Although the act of placing the boy in the steaming water would have been sufficient by itself to convict on the cruelty to children charge, the defendant's conviction for this offense must be vacated since only the conviction for the greater offense of aggravated battery may stand. Despite several Illinois cases which hold that cruelty to children is a lesser included offense of aggravated battery ( People v. Armstrong (1979), 77 Ill. App.3d 916; People v. Koch (1978), 64 Ill. App.3d 537; People v. Holmes (1973), 13 Ill. App.3d 955), the rationale of those holdings is not expressed, and we do not vacate the conviction on those precedents. Though the rationale of Stoehr (cited above) is helpful here, that case is factually distinguishable.
There is precedential authority which clearly holds that the offense of cruelty to children is a lesser included offense of aggravated battery. (See People v. Holmes (1973), 13 Ill. App.3d 955, 301 N.E.2d 316, and People v. Koch (1978), 64 Ill. App.3d 537, 381 N.E.2d 377.) The defendant's conviction for the offense of cruelty to children was based on the same evidence which supported her conviction on two counts of aggravated battery.
Since these offenses arose out of the same conduct, it was improper to convict the defendant on both the greater offense of aggravated battery and the lesser offense of cruelty to children. ( People v. Holmes (4th Dist. 1973), 13 Ill. App.3d 955, 301 N.E.2d 316.) Accordingly, we affirm the conviction of the defendant of two counts of aggravated battery and we reverse the conviction of two counts of cruelty to children.
The evidence upon which the trial judge based the contested order establishes two separate events, both involving physical abuse and cruelty inflicted upon Timothy by John Holmes. In People v. Holmes, 13 Ill. App.3d 955, 301 N.E.2d 316, we affirmed the conviction of John Holmes for the crime of aggravated battery committed upon the child Timothy. The details of that brutality are recited, with some restraint, in that opinion. The opinion remarks that Timothy was not taken to the hospital until the day following his injuries.