Cite as: 530 U. S. 466 (2000)
Thomas, J., concurring
the statute, and the sentence prescribed be different from the first, or severer, by reason of its being such second or third offence, the fact thus relied on must be averred in the indictment; for the settled rule is, that the indictment must contain an averment of every fact essential to justify the punishment inflicted." Maguire, supra, at 496 (citing English cases, Plumbly v. Commonwealth, 43 Mass. 413 (1841), Wharton, and Bishop).
In Goeller v. State, 119 Md. 61, 85 A. 954 (1912), the same court reaffirmed Maguire and voided, as contrary to Mary-land's Notice Clause, a statute that permitted the trial judge to determine the fact of a prior conviction. The court extensively quoted Bishop, who had, in the court's view, treated the subject "more fully, perhaps, than any other legal writer," and it cited, among other authorities, "a line of Massachusetts decisions" and Riggs (quoted supra, at 512). 119 Md., at 66, 85 A., at 955. In Larney, 34 Ohio St., at 600-601, the Supreme Court of Ohio, in an opinion citing only Bishop, reversed a conviction under a recidivism statute where the indictment had not alleged any prior conviction. (The defendant had also relied on Plumbly, supra, and Kilbourn v. State, 9 Conn. 560 (1833). 34 Ohio St., at 600.) And in State v. Adams, 64 N. H. 440, 13 A. 785 (1888), the court, relying on Bishop, explained that "[t]he former conviction being a part of the description and character of the offense intended to be punished, because of the higher penalty imposed, it must be alleged." Id., at 442, 13 A., at 786. The defendant had been "charged with an offense aggravated by its repetitious character." Ibid. See also Evans v. State, 150 Ind. 651, 653, 50 N. E. 820 (1898) (similar); Shiflett v. Commonwealth, 114 Va. 876, 877, 77 S. E. 606, 607 (1913) (similar).
Even without any reliance on Bishop, other courts addressing recidivism statutes employed the same reasoning as did he and the above cases—that a crime includes any fact to which punishment attaches. One of the leading cases was
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