This unusual state habeas corpus case is an extremely perplexing one with a harsh result. The petitioner, Ronald F. Goodloe, was driving his automobile on the evening of May 7, 1975, when a police officer in the community of Blair, Nebraska saw him and suspected he was driving with a suspended driver’s license. Goodloe was well known to the police; he had been convicted of willful and reckless driving on four other occasions and had two state felony convictions. Seeing the police car’s flashing lights, Goodloe accelerated to a high rate of speed, and the officer gave chase. Goodloe was finally apprehended and charged with willful and reckless driving (third offense), Neb.Rev. Stat. § 39-669.06 (1974), operating a motor vehicle to avoid arrest, Neb.Rev.Stat. § 60— 430.07 (1974), and being an habitual criminal, Neb.Rev.Stat. § 29-2221 (1964). He was convicted by a jury on all counts, and sentenced to two concurrent 10 to 15 year terms of imprisonment.1 The Nebraska Supreme Court affirmed the conviction, but modified the sentence to two concurrent 10 year terms.2 Goodloe sought a writ of habeas corpus in federal district court. Upon denial this appeal followed.
The scenario began when Goodloe was tried on one count of a two count information for driving with a suspended license in Washington County court. Much to the chagrin of the prosecutor, the conviction was reversed by the district court for insuf*1043ficient evidence. However, sweet prosecutorial revenge was in the offing. Following reversal, the State amended the filed information to include not only the remaining count of operating a motor vehicle to avoid arrest, but also a second count of being an habitual criminal. This information was consolidated with another information, previously filed, which alleged one count of willful and reckless driving (third offense) and a second count of being an habitual criminal.3
The 15 year concurrent sentences (later modified to 10), were made possible in the following manner. The prosecutor charged avoidance of arrest as a felony. Willful and reckless driving, normally a misdemeanor, becomes a felony by operation of enhanced penalty provisions when it is a third offense or subsequent offense, and the prosecutor charged third offense.4 Habitual offender counts were added to each information. Upon conviction of a felony committed in Nebraska, proof of two prior felony convictions results in imposition of a mandatory 10-year prison term under the habitual criminal statute. Neb.Rev.Stat. § 29-2221 (1964).5 Thus, even with use of concurrent sentences, no Nebraska court could give Goodloe a term of imprisonment less than 10 years for what was an attempt to evade arrest for the misdemeanor of driving with a suspended license.
Although Goodloe’s counsel raises several distinct points on appeal we find these can be basically summarized as:
1. Due process and double jeopardy challenges to prosecution for both operation of a motor vehicle to avoid arrest and willful and reckless driving when the evidence demonstrating operation of the vehicle to avoid the arrest was the 3ame as that which showed the reckless driving. Stated in another way, the issue is whether a person in a motor vehicle being pursued by a police officer for reckless operation of the vehicle may be charged with avoidance of arrest for the same reckless driving incident.
2. Due process and double jeopardy challenges to simultaneous application of two penalty enhancement statutes, one that made a subsequent misdemeanor offense into a felony, (i. e., third offense reckless driving), and an habitual criminal statute that enhanced the penalty for this offense upon proof of conviction of prior felonies.6
*1044 Avoidance of Arrest — Due Process. We need not pass on the double jeopardy question raised, because we hold the conviction for operation of a motor vehicle to avoid arrest should be set aside because of violations of Goodloe’s right to due process of law, guaranteed by the Fourteenth Amendment to the United States Constitution.7 In the state court Goodloe challenged, as violative of due process, the vagueness of the statute which defines the crime of operating a motor vehicle to avoid arrest as applied in his case.8 He makes the same argument here. We need not pass on the constitutionality of the statute, but relate the challenge to the statute only in a collateral sense, as it affects the fairness of Goodloe’s conviction under it. See State v. Etchison, 190 Neb. 629, 211 N.W.2d 405 (1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974); Heywood v. Brainard, 181 Neb. 294, 147 N.W.2d 772 (1967). The statute’s lack of specificity in definition of criminal conduct is reflected in disputes which arose at trial over whether a specific prior violation of law had to be alleged and proved for conviction. While we hold Goodloe’s trial was fundamentally unfair due to lack of fair and reasonable notice of the offense charged, our conclusion is derived from a combination of factors: the specificity of the complaint and arrest warrant that alleged flight from arrest for driving with a suspended license, the general language of the information, the trial court rulings on the elements of the offense, the mid-trial switch in the prosecution’s case in chief, and the instructions given.
It is clear from the arrest warrant and the first information filed, statements made in court and the progress of the trial, that the State based its avoidance of arrest charge under the statute on the theory that the arrest Goodloe was avoiding was an arrest based upon probable cause that he was driving with a suspended license. During trial, the court ruled proof Goodloe had violated a state law was required for the State to sustain its charge of avoiding arrest. Thus, because Goodloe had been previously acquitted on the suspended license charge, the district court ruled that proof of flight from arrest for driving with a suspended license was precluded and sustained Goodloe’s motion to exclude evidence concerning suspension of his license.9 Thereafter the State, without amending the information, changed its theory of prosecution 10 and attempted to prove flight from *1045arrest for any of four violations, among them willful and reckless driving. The court allowed the switch, but because of its concern over the issue of fair notice to Goodloe of the case he had to meet, it specified the underlying violation and instructed the jury that it must find, as an element of the offense of operating a motor vehicle to avoid arrest, that Goodloe “had violated a law of this State, to-wit: Operating a motor vehicle in such a manner as to indicate a willful disregard for the safety of persons or property . . . .”11
The fundamental right “to be informed of the nature and cause of the accusation,” guaranteed criminal defendants by both the Nebraska and United States Constitutions, U.S.Const. Amend. VI; Neb.Const. art. 1, § 11, is implemented primarily by charging papers which contain the elements of the offense so as to fairly inform a defendant of the charge against which he must defend. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Brown, 540 F.2d 364, 371 (8th Cir. 1976); State v. Harig, 192 Neb. 49, 56-57, 218 N.W.2d 884, 889 (1974). This most basic ingredient of due process, a person’s right to reasonable notice of the charge against him, is incorporated in the Fourteenth Amendment to the United States Constitution and thus cannot be abridged by the states. See In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); DeJonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Watson v. Jago, 558 F.2d 330, 338 (6th Cir. 1977).12
An information in the words of the statute creating the offense will generally suffice, Hamling v. United States, 418 U.S. at 117, 94 S.Ct. 2887, but the requirement of fair notice is only met if “those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.” Id. (quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882)); see also State v. Abraham, 189 Neb. 728, 729-30, 205 N.W.2d 342, 343-44 (1973).
The indictment upon which Goodloe was tried charged that he did, in the words of the statute, “unlawfully operate a motor vehicle to flee in such vehicle in an effort to avoid arrest for violating any law of this State.” There is no indication from this statutory language that, as the trial court held and instructed the jury, an additional element must be proven for conviction: actual commission of the violation of state law. for which the defendant fled arrest. Once prior violation of a specific state statute became an element of the offense by virtue of the trial court ruling, Goodloe was entitled not only to notice of that general fact, but also to specific notice of what law he was alleged to have violated. See Keck v. United States, 172 U.S. 434, 437, 19 S.Ct. 254, 43 L.Ed. 505 (1899); United States v. Cruikshank, 92 U.S. 542, 565-66, 23 L.Ed. *1046588 (1875).13 As the trial court’s exclusion of evidence pertaining to the suspended license charge illustrated, whether Goodloe had violated a specific state statute was a crucial factual determination. In such a situation, an information which describes the offense in generic terms fails to adequately inform of the specific offense charged so as to allow preparation of a defense. Russell v. United States, 369 U.S. 749, 764-66, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 31 L.Ed. 516 (1888). Thus the information, while couched in the language of the statute, nevertheless failed to adequately describe the offense charged because it did not allege an essential substantive element. See United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882); see also Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939).
If a defendant is actually notified of the charge, due process notice requirements may be met, even if the information is deficient. See United States v. Camp, 541 F.2d 737, 740 (8th Cir. 1976); cf. United States v. Cartano, 534 F.2d 788, 791 (8th Cir.). cert. denied, 429 U.S. 843, 97 S.Ct. 121, 50 L.Ed.2d 113 (1976). Goodloe was notified by complaint and arrest warrant of the prosecution’s theory that he fled arrest for driving with a suspended license. He was prepared to defend on those grounds and therefore would not necessarily have been prejudiced if the trial court ruling had been limited to requiring commission of the violation for which his arrest was sought, driving with a suspended license, be proven as an essential element of the charge.14
However, even assuming Goodloe was not prejudiced by the information’s lack of notice of an essential element of the offense, the deficiency of the information was compounded by modifications at trial, without notice or amendment of the information, in the elements of the offense. The lack of pretrial notice by information was aggravated by uncertainty during trial over what specific violation the prosecution would prove. The State urged, as late as the conference on instructions, that the jury could find from its proof that the underlying violation was either failing to stop at a stop sign, speeding, careless driving or willful and reckless driving, even though the first three violations were never mentioned in a complaint, arrest warrant, or information. Thus, in mid-trial the State not only changed the underlying violation it sought to prove, but then failed to specify what violation it was attempting to prove. The trial court recognized the problem of fair notice to Goodloe and only allowed the jury to find willful and reckless driving as the necessary prior violation element of the avoidance of arrest charge. The instruction to the jury could not, however, cure the fundamental unfairness of requiring Goodloe to defend without notice of specific elements of the offense charged.
The mid-trial shift, from proof of flight to avoid arrest for driving with a suspended license, for which Goodloe had prepared a defense, to proof of flight to avoid arrest for any one of four possible violations, illustrates the prejudice inherent in an information which fails to specify an essential element of the offense. The defendant is given insufficient notice to prepare a defense, he proceeds to trial with factual issues undefined, and the prosecution is left “free to roam at large — to shift its theory of criminality so as to take advantage of each passing vicissitude of the trial and appeal.” Russell v. United States, 369 U.S. at 768, 82 S.Ct. at 1049.
Due to a unique combination of circumstances, the State’s action here is difficult to categorize — the trial court ruling meant the information was initially insufficient *1047for omission of an essential element; the absent element, of which Goodloe did have notice, was changed by events at trial, effectively amending the already deficient information or creating a variance; and, because the State did not specify the element it sought to prove until the end of trial, Goodloe had to prepare to meet, or without notice was unable to meet, proof of four possible statutory violations. Under these circumstances, we conclude Goodloe was not given fair and reasonable notice of the offense charged and the case against which he had to prepare a defense; the result was a fundamentally unfair trial that requires the conviction be set aside. See Watson v. Jago, 558 F.2d 330 (6th Cir. 1977).15
Willful and Reckless Driving. Remaining is Goodloe’s attack on double enhancement of his penalty for willful and reckless driving — punishment as a felony upon finding the conviction was for a third or subsequent offense followed by imposition of the mandatory 10 year minimum sentence under the habitual criminal statute upon proof of two prior felonies.16
A statute that enhances punishment on the basis of subsequent convictions for the identical offense and an habitual criminal statute, which enhances the penalty on the basis of any prior felony convictions, have been repeatedly upheld against almost every conceivable constitutional challenge, including due process, double jeopardy, and cruel and unusual punishment. See Spencer v. Texas, 385 U.S. 554, 559-60, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Wessling v. Bennett, 410 F.2d 205, 207 (8th Cir. 1969). The reasoning is that the statutes do not charge a separate and distinct crime so as to put a defendant again in jeopardy for the prior offenses, but bear only on permissible punishment for the latest offense. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948); Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912). Nor is penalty enhancement considered multiple punishment for one offense, but rather imposition of a heavier punishment for an offense aggravated by repetitious criminal conduct. Gryger v. Burke; Graham v. West Virginia.
Nonetheless, we have been unable to find any federal cases which consider challenges under the United States Constitution to stacking a specific subsequent offense penalty enhancement statute and a general habitual criminal statute upon one another in sentencing for a single offense.
Several state court decisions have involved use of a statute that enhances a misdemeanor to a felony upon repetition of the same offense and a general habitual criminal statute. Very few of these cases address the instant situation, however, in which the conduct being currently punished, the offense which “triggers” application of the habitual criminal statute, is a misdemeanor that has been enhanced to felony status only by virtue of its repetition.17 *1048The practice has been generally condemned on the basis of legislative intent.18 In addition, several states have held that penalty enhancement provisions set forth for subsequent offenses of specific crimes must be used when applicable instead of sentencing under a general recidivist statute, which would imply that both statutes may not be used for double penalty enhancement in sentencing for one offense.19 All the state court decisions invalidating double penalty enhancement employ canons of statutory construction such as: an habitual offender statute must be strictly construed, because it is penal; a specific statute (e. g., subsequent specific offense statute) controls over a more general one ( e. g., habitual criminal statute); and a subsequent offense statute based upon a specific crime cannot create a “true” felony, for purposes of an habitual offender statute, because it does not define an offense, but merely increases punishment upon a second or subsequent conviction of the same offense.
While the weight of authority appears to be against double penalty enhancement through application of both a specific subsequent offense statute and an habitual criminal statute, the state court decisions mentioned above do not rest on federal constitutional grounds. Similarly, the issue of whether upon conviction of a misdemeanor, sentence could be imposed on a felony charge under an habitual criminal statute, has been held not cognizable in federal habeas corpus because it rests upon an interpretation of state law in Glenn v. Pate, 406 F.2d 68, 69 (7th Cir. 1969). Whether the Nebraska legislature intended a third or subsequent conviction of the misdemeanor of willful and reckless driving to be a “trigger” felony conviction for application of the habitual criminal sentencing statute was not raised in Goodloe’s appeal to the Nebraska Supreme Court. Thus, while Goodloe has posed serious federal constitutional questions, under the circumstances we feel obligated to abstain from passing on these, as the Nebraska Supreme Court’s interpretation of Nebraska law may render a decision unnecessary. We therefore require Goodloe to raise the issue of legislative intent in state court, through a petition for post-conviction relief, before a *1049federal court passes upon the constitutional questions he raises here.20
We vacate that portion of the district court decree relating to the constitutionality of the stacking of the two penalty enhancement statutes. We hold that until the Nebraska state courts construe the legislative intent of the two provisions, passing upon the constitutional questions is premature.
We do hold, however, that Goodloe’s avoidance of arrest conviction was obtained in violation of the requirements of due process of law and is void. As the conviction and concurrent sentence for willful and reckless driving remain, the district court must retain jurisdiction. We therefore instruct the district court to retain jurisdiction pending the outcome of Goodloe’s petition to the Nebraska state courts. The state court proceedings, assuming they are completed within a reasonable time, should be certified by the defendant to the federal district court, which may then pass on the remaining constitutional issues, if necessary, in this habeas proceeding.
THE CAUSE IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.