514
Thomas, J., concurring
or any term of years. The court, relying on Bishop, Hope, McDonald, and other authority, rejected his argument that Maine's Notice Clause (which of course required all elements to be alleged) required the indictment to allege the value of the goods stolen, because the punishment did not turn on value: "[T]here is no provision of this statute which makes the amount of property taken an essential element of the offense; and there is no statute in this State which creates degrees in robbery, or in any way makes the punishment of the offense dependent upon the value of the property taken." 86 Me., at 432, 30 A., at 75. The court further explained that "where the value is not essential to the punishment it need not be distinctly alleged or proved." Id., at 433, 30 A., at 76.
Reasoning similar to Perley and the Texas cases is evident in other cases as well. See Jones v. State, 63 Ga. 141, 143 (1879) (where punishment for burglary in the day is 3 to 5 years in prison and for burglary at night is 5 to 20, time of burglary is a "constituent of the offense"; indictment should "charge all that is requisite to render plain and certain every constituent of the offense"); United States v. Woodruff, 68 F. 536, 538 (Kan. 1895) (where embezzlement statute "contem-plates that there should be an ascertainment of the exact sum for which a fine may be imposed" and jury did not determine amount, judge lacked authority to impose fine; "[o]n such an issue the defendant is entitled to his constitutional right of trial by jury").
Courts also, again just as in the pre-Bishop period, applied the same reasoning to the fact of a prior conviction as they did to any other fact that aggravated the punishment by law. Many, though far from all, of these courts relied on Bishop. In 1878, Maryland's high court, in Maguire v. State, 47 Md. 485, stated the rule and the reason for it in language indistinguishable from that of Tuttle a quarter century before:
"The law would seem to be well settled, that if the party be proceeded against for a second or third offence under
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