512
Thomas, J., concurring
e. g., Hobbs v. State, 44 Tex. 353, 354 (1875) (favorably quoting 1 Bishop, Criminal Procedure § 81); Maguire v. State, 47 Md. 485, 497 (1878) (approvingly citing different Bishop treatise for the same rule); Larney v. Cleveland, 34 Ohio St. 599, 600 (1878) (rule and reason for rule "are well stated by Mr. Bishop"); State v. Hayward, 83 Mo. 299, 307 (1884) (extensively quoting § 81 of Bishop's "admirable treatise"); Riggs v. State, 104 Ind. 261, 262, 3 N. E. 886, 887 (1885) ("We agree with Mr. Bishop that the nature and cause of the accusation are not stated where there is no mention of the full act or series of acts for which the punishment is to be inflicted" (internal quotation marks omitted)); State v. Perley, 86 Me. 427, 431, 30 A. 74, 75 (1894) ("The doctrine of the court, says Mr. Bishop, is identical with that of reason, viz: that the indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted" (internal quotation marks omitted)); see also United States v. Reese, 92 U. S. 214, 232-233 (1876) (Clifford, J., concurring in judgment) (citing and paraphrasing 1 Bishop, Criminal Procedure § 81).
C
In the half century following publication of Bishop's treatise, numerous courts applied his statement of the common-law understanding; most of them explicitly relied on his treatise. Just as in the earlier period, every fact that was by law a basis for imposing or increasing punishment (including the fact of a prior conviction) was an element. Each such fact had to be included in the accusation of the crime and proved to the jury.
Courts confronted statutes quite similar to the ones with which we have struggled since McMillan, and, applying the traditional rule, they found it not at all difficult to determine whether a fact was an element. In Hobbs, supra, the defendant was indicted for a form of burglary punishable by 2 to 5 years in prison. A separate statutory section provided for an increased sentence, up to double the punishment
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