Mr. JUSTICE KARNS
delivered the opinion of the court:
Defendant-Appellant, James Lockwood, was convicted of aggravated battery after a jury trial in Jefferson County and was sentenced to serve from two to six years. The trial court ordered that the sentence be served consecutively to a sentence being served. On appeal, defendant contends that the court erred in failing to instruct the jury on the affirmative defense of justified use of force, and that the sentence imposed is excessive.
The evidence adduced at trial showed that defendant and one Bobby Martin stopped a car occupied by Julie Griess, the complaining witness, and Susan Lee, defendant’s girlfriend. Defendant was 32 years of age and the girls were 16. Defendant demanded his car keys from Susan Lee. She refused to relinquish them because of defendant’s intoxicated state, whereupon defendant pulled her from the car and slapped her. Julie Griess left and proceeded to the parking lot of the Mt. Vernon Township High School. As she was sitting in the lot with another girl on the trunk of her car, defendant, Martin, and Susan Lee arrived. At this time, defendant was about 100 feet from Julie Griess. Defendant again slapped Susan Lee, who then walked away. At this point the evidence is conflicting. The State’s evidence showed that defendant initiated a conversation with Julie Griess and approached her. An argument ensued involving obscenities and epithets from both defendant and Griess. Defendant then slapped Griess with an open hand on the left side of her face. Griess then slapped defendant; defendant slapped Griess again; Griess tried to kick defendant; and defendant hit Griess knocking her to the ground. Defendant then left. Bobby Martin walked up to Julie Griess and, after more obscenities from both sides, slapped her. Julie Griess went, in succession, to the police, her father’s business office, and the hospital for examination. Medical evidence indicated that she had suffered mild contusions or bruises on her face and a mild abrasion or scrape on her arm. The abrasion was washed with soap and water but no other treatment was required.
Defense testimony showed that at the school parking lot Julie Griess had initiated the argument and that defendant had approached her simply to tell her to mind her own business. The same epithets and obscenities were hurled but Julie Griess struck the first blow. Defendant admitted having struck her after that but did not remember knocking her down. Defendant and one other witness testified that a month after the incident, Julie Griess admitted to them in a tavern that she had struck the first blow and that she had not wanted to prosecute but was being forced to by her parents. On rebuttal, Julie Griess’ mother testified that her daughter had never indicated a desire to dismiss the charge.
At trial, defendant tendered the following instruction:
The Court instructs the jury that the Statutes of the State of Illinois provide: A person is justified in the use of force against another when and to the extent that he reasonably believes such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force.”
The State objected to the instruction because it was not contained in Illinois Pattern Instructions and because it was not supported by the evidence. The instruction is identical to IPI 24.06 except that it contains both “himself” and “another,” listed in the disjunctive whereas IPI indicates that only the apphcable choice be used. The trial court, however, refused this instruction because, whUe it recognized the conflict in the evidence as to who struck the first blow, the evidence did not show that defendant at any time had a reasonable belief of the necessity to defend himself from any force used by Julie Griess. Defendant now contends the court erred in denying defendant the opportunity to present a defense to the jury suggested, at least somewhat, by the evidence.
The defendant is entitled to an instruction on any defense or theory of the case upon which some evidence appears of record from which the jury could sustain that defense or theory. (People v. Khamis, 411 Ill. 46, 103 N.E.2d 133 (1951); People v. Scalisi, 324 Ill. 131, 154 N.E. 715 (1926).) It is defendant’s contention that since the evidence was in conflict as to who initiated the altercation, he deserved the opportunity to have the jury instructed on the justifiable use of force. As the State notes, were defendant the aggressor he would have no right to use force under the present facts. (People v. Oliver, 11 Ill. App. 3d 152, 296 N.E.2d 70 (1973).) We do not believe the question of aggression to be controlling, however. The clear implication of the trial court’s remarks in refusing the instruction was that regardless of who started the fight, the defendant could not have reasonably believed it necessary to use force to defend himself. We agree. Even if Julie Griess struck defendant first, the evidence indicates that he returned the blow not to prevent subsequent attack but in retaliation. Such action is not included within the realm of justifiable use of force. (People v. Thornton, 26 Ill. 2d 218, 186 N.E.2d 239 (1962); People v. Dillon, 24 Ill. 2d 122, 180 N.E.2d 503 (1962).) Defendant places great emphasis on the victim’s attempt to kick him. The evidence indicates that defendant had struck two blows prior to that. Thus, the offense had been completed prior to the kick. Defendant was charged under section 12 — 4 (b) (8) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 12 — 4(b)(8)), in that he committed a battery while he and the victim were on public property. Thus there was no requirement that the State prove serious bodily injury. We believe that the trial court properly refused the instruction concerning justifiable use of force tendered by the defendant.
Defendant next contends that the sentence of from two to six years was excessive. The claim is based upon the language of section 12— 4(b)(9), (d) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 12— 4(b)(9), (d)). Prior to January, 1973, the penalty for aggravated battery other than that for causing great bodily harm, was a sentence to a penal institution other than the penitentiary not to exceed one year or imprisonment in the penitentiary for not less than one nor more than five years. Section 12 — 4(a) provided a penalty of from one to ten years for aggravated battery causing great bodily harm. In 1973, pursuant to the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1—1 et seq.), aggravated battery was classified a Class 3 felony, carrying a penalty of not less than one nor more than ten years. The new penalty was added to section 12 — 4 as subparagraph (d), but the previous penalty provision contained in subparagraph (b)(9) was not correspondingly deleted. The penalty provision of 12 — 4(a) was deleted, however. We note in passing that the legislature has corrected this anomaly. P.A. 79— 1001, effective October 1, 1975.
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Mr. JUSTICE KARNS
delivered the opinion of the court:
Defendant-Appellant, James Lockwood, was convicted of aggravated battery after a jury trial in Jefferson County and was sentenced to serve from two to six years. The trial court ordered that the sentence be served consecutively to a sentence being served. On appeal, defendant contends that the court erred in failing to instruct the jury on the affirmative defense of justified use of force, and that the sentence imposed is excessive.
The evidence adduced at trial showed that defendant and one Bobby Martin stopped a car occupied by Julie Griess, the complaining witness, and Susan Lee, defendant’s girlfriend. Defendant was 32 years of age and the girls were 16. Defendant demanded his car keys from Susan Lee. She refused to relinquish them because of defendant’s intoxicated state, whereupon defendant pulled her from the car and slapped her. Julie Griess left and proceeded to the parking lot of the Mt. Vernon Township High School. As she was sitting in the lot with another girl on the trunk of her car, defendant, Martin, and Susan Lee arrived. At this time, defendant was about 100 feet from Julie Griess. Defendant again slapped Susan Lee, who then walked away. At this point the evidence is conflicting. The State’s evidence showed that defendant initiated a conversation with Julie Griess and approached her. An argument ensued involving obscenities and epithets from both defendant and Griess. Defendant then slapped Griess with an open hand on the left side of her face. Griess then slapped defendant; defendant slapped Griess again; Griess tried to kick defendant; and defendant hit Griess knocking her to the ground. Defendant then left. Bobby Martin walked up to Julie Griess and, after more obscenities from both sides, slapped her. Julie Griess went, in succession, to the police, her father’s business office, and the hospital for examination. Medical evidence indicated that she had suffered mild contusions or bruises on her face and a mild abrasion or scrape on her arm. The abrasion was washed with soap and water but no other treatment was required.
Defense testimony showed that at the school parking lot Julie Griess had initiated the argument and that defendant had approached her simply to tell her to mind her own business. The same epithets and obscenities were hurled but Julie Griess struck the first blow. Defendant admitted having struck her after that but did not remember knocking her down. Defendant and one other witness testified that a month after the incident, Julie Griess admitted to them in a tavern that she had struck the first blow and that she had not wanted to prosecute but was being forced to by her parents. On rebuttal, Julie Griess’ mother testified that her daughter had never indicated a desire to dismiss the charge.
At trial, defendant tendered the following instruction:
The Court instructs the jury that the Statutes of the State of Illinois provide: A person is justified in the use of force against another when and to the extent that he reasonably believes such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force.”
The State objected to the instruction because it was not contained in Illinois Pattern Instructions and because it was not supported by the evidence. The instruction is identical to IPI 24.06 except that it contains both “himself” and “another,” listed in the disjunctive whereas IPI indicates that only the apphcable choice be used. The trial court, however, refused this instruction because, whUe it recognized the conflict in the evidence as to who struck the first blow, the evidence did not show that defendant at any time had a reasonable belief of the necessity to defend himself from any force used by Julie Griess. Defendant now contends the court erred in denying defendant the opportunity to present a defense to the jury suggested, at least somewhat, by the evidence.
The defendant is entitled to an instruction on any defense or theory of the case upon which some evidence appears of record from which the jury could sustain that defense or theory. (People v. Khamis, 411 Ill. 46, 103 N.E.2d 133 (1951); People v. Scalisi, 324 Ill. 131, 154 N.E. 715 (1926).) It is defendant’s contention that since the evidence was in conflict as to who initiated the altercation, he deserved the opportunity to have the jury instructed on the justifiable use of force. As the State notes, were defendant the aggressor he would have no right to use force under the present facts. (People v. Oliver, 11 Ill. App. 3d 152, 296 N.E.2d 70 (1973).) We do not believe the question of aggression to be controlling, however. The clear implication of the trial court’s remarks in refusing the instruction was that regardless of who started the fight, the defendant could not have reasonably believed it necessary to use force to defend himself. We agree. Even if Julie Griess struck defendant first, the evidence indicates that he returned the blow not to prevent subsequent attack but in retaliation. Such action is not included within the realm of justifiable use of force. (People v. Thornton, 26 Ill. 2d 218, 186 N.E.2d 239 (1962); People v. Dillon, 24 Ill. 2d 122, 180 N.E.2d 503 (1962).) Defendant places great emphasis on the victim’s attempt to kick him. The evidence indicates that defendant had struck two blows prior to that. Thus, the offense had been completed prior to the kick. Defendant was charged under section 12 — 4 (b) (8) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 12 — 4(b)(8)), in that he committed a battery while he and the victim were on public property. Thus there was no requirement that the State prove serious bodily injury. We believe that the trial court properly refused the instruction concerning justifiable use of force tendered by the defendant.
Defendant next contends that the sentence of from two to six years was excessive. The claim is based upon the language of section 12— 4(b)(9), (d) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 12— 4(b)(9), (d)). Prior to January, 1973, the penalty for aggravated battery other than that for causing great bodily harm, was a sentence to a penal institution other than the penitentiary not to exceed one year or imprisonment in the penitentiary for not less than one nor more than five years. Section 12 — 4(a) provided a penalty of from one to ten years for aggravated battery causing great bodily harm. In 1973, pursuant to the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1—1 et seq.), aggravated battery was classified a Class 3 felony, carrying a penalty of not less than one nor more than ten years. The new penalty was added to section 12 — 4 as subparagraph (d), but the previous penalty provision contained in subparagraph (b)(9) was not correspondingly deleted. The penalty provision of 12 — 4(a) was deleted, however. We note in passing that the legislature has corrected this anomaly. P.A. 79— 1001, effective October 1, 1975.
Defendant on appeal appears to assume the correctness of the one- to five-year penalty and argues that the maximum must be reduced to five years and the minimum to one year and eight months, this to comport with the 1 to 3 ratio prescribed by section 5 — 8—1(c)(4) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(4)). Thus, defendant both admits and denies the applicability of the Unified Code of Corrections. The State, on the other hand, argues that the dual penalty provision is a “legislative oversight” and should be ignored in light of the clear legislative intent to classify and standardize criminal penalties. (Ill. Ann. Stat., ch. 38, §1001 — 1—1 et seq.) Council Commentary (Smith-Hurd 1973).) In People v. Scott, 57 Ill. 2d 353, 312 N.E.2d 596 (1974), the Supreme Court recognized that ambiguities and drafting errors exist in the Unified Code of Corrections and reaffirmed the principle that courts should interpret those ambiguities to effect the intent of the legislature. Although Scott involved inserting necessary missing language rather than disregarding inadvertent surplusage, we believe the rationale to be the same. However, we have recently treated this question in People v. Lowe, 30 Ill. App. 3d 49, 331 N.E.2d 639 (1975). In that case, the Statewide Appellate Assistance Service of the Illinois State’s Attorneys Association, counsel for the State, confessed that a sentence other than that provided in section 12 — 4(b)(9) was error. While we question the validity of that assertion, we believe that uniformity is required. We therefore reduce defendant’s sentence to a minimum of one year eight months and a maximum of five years.
The judgment of the Circuit Court of Jefferson County is affirmed as modified.
Affirmed as modified.
CARTER, J., concurs.