504
Thomas, J., concurring
the statute has "creat[ed] two grades of crime." Larned v. Commonwealth, 53 Mass. 240, 242 (1847). See also id., at 241 ("[T]here is a gradation of offences of the same species" where the statute sets out "various degrees of punishment").
Conversely, where a fact was not the basis for punishment, that fact was, for that reason, not an element. Thus, in Commonwealth v. McDonald, 59 Mass. 365 (1850), which involved an indictment for attempted larceny from the person, the court saw no error in the failure of the indictment to allege any value of the goods that the defendant had attempted to steal. The defendant, in challenging the indictment, apparently relied on Smith and Hope, and the court rejected his challenge by explaining that "[a]s the punishment . . . does not depend on the amount stolen, there was no occasion for any allegation as to value in this indictment." 59 Mass., at 367. See Commonwealth v. Burke, 94 Mass. 182, 183 (1866) (applying same reasoning to completed larceny from the person; finding no trial error where value was not proved to jury).
Similar reasoning was employed by the Wisconsin Supreme Court in Lacy v. State, 15 Wis. *13 (1862), in interpreting a statute that was also similar to the statutes at issue in Jones and Castillo. The statute, in a single paragraph, outlawed arson of a dwelling house at night. Arson that killed someone was punishable by life in prison; arson that did not kill anyone was punishable by 7 to 14 years in prison; arson of a house in which no person was lawfully dwelling was punishable by 3 to 10 years.4 The court had no trouble
4 The Wisconsin statute provided: "Every person who shall willfully and maliciously burn, in the night time, the dwelling house of another, whereby the life of any person shall be destroyed, or shall in the night time willfully and maliciously set fire to any other building, owned by himself or another, by the burning whereof such dwelling house shall be burnt in the night time, whereby the life of any person shall be destroyed, shall suffer the same punishment as provided for the crime of murder in the second degree; but if the life of no person shall have been destroyed, he shall be punished by imprisonment in the state prison, not more than fourteen
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