[551]*551Me. Justice Tomlinson
delivered the opinion of the Court.
This is an appeal from a conviction of driving while intoxicated with punishment fixed by the jury at a fine of $250 and confinement in the workhouse for 11 months and 29 days.
The State invoked upon the trial Code, Section 59-1035 providing that for the third or subsequent conviction of so driving a fine of not less than $50 and confinement at not less than 60 days is required.
The indictment did not give notice until the case was called for trial that Code, Section 59-1035 would be invoked. Thus, during the introduction of its proof in chief, the State, over the objection of Frost, introduced evidence of three prior convictions of Frost of driving while intoxicated. It is insisted that such procedure was prejudicial error.
The contention of Frost is that evidence of such previous convictions should not have been offered until after the jury had considered his guilt or innocence on the charge of driving while drunk on the occasion alleged in the indictment, and if, as to that occasion, a verdict of guilty had been returned, then, but not until then, evidence of the previous convictions was permissible.
The basis of the foregoing contention is that evidence of previous convictions before the jury has found him guilty of the offense charged in the indictment tends to [552]*552prejudice tlie jurors against the defendant in the consideration of his guilt or innocence of the offense charged in the indictment, notwithstanding an instruction of the Court that such previous convictions should be considered only in connection with the minimum punishment required by the jury in the event it found him guilty of the offense charged.
In McBride v. State, 200 Tenn., 100, 290 S.W. 2d 648, the procedure here insisted upon by Frost was followed. It was attacked as error by McBride, his insistence being that the procedure should have been the same as that followed in this, the Frost case. This Court held in the McBride, case that it was not error for the Trial Court to withhold from the jury evidence of previous convictions until it, the jury, had considered the guilt or innocence of McBride as to the offense charged in the indictment and returned a verdict of guilt thereof.
Such holding in the McBride case was undoubtedly correct and in accord with the general rule. That rule is stated in 24 C.J.S. Criminal Law sec. 1969(b), p. 1167, wherein, in dismissing the order of trying the issues in a prosecution of accused as a second or subsequent offender the rule is stated to be that:
“In the absence of statutory provisions relating thereto, it has been held that the manner of presenting issues is discretionary with the trial court, * *
But this Court, every member concurring therein, went further in the McBride case than simply determining the issue, to wit, whether the Trial Judge committed error in the procedure which he followed. And in going he-[553]*553yond tlie issue for decision this Court said (290 S.W. 2d 651):
“* '* * it could not have been handled in any other way. The other offenses were violations of the liquor laws and the introduction of same into evidence before the jury found him guilty would have violated the rule in regard to the admissibility of other offenses as fully discussed in Harris v. State, 189 Tenn. 635, 277 S.W. 2d 8 and would have been prejudicial to defendant even though admitted solely for the purpose of aiding the jury in the determination of what punishment they should assess if they found him guilty.”
It is quite obvious that the foregoing quoted statement was dictum. It falls squarely within the clear definition of that word as reiterated in Staten v. State, 191 Tenn. 157, 159-160, 232 S.W. 2d 18, 19, as follows:
“Courts sometimes go beyond the point necessary for a decision in a lawsuit and make expressions on certain things there involved which are not necessary for a determination of the lawsuit. Such statements by a court are known as dictum. * * * and is, therefore, not a controlling statement to courts when the question rises again that has been commented on by way of dictum. ’ ’
Or, as held in State ex rel. Lea v. Brown, 166 Tenn. 669, 678, 64 S.W. 2d 841, 844, 91 A.L.R. 1246, if statements in an opinion
“go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision,”
[554]*554unless, of course, such statements in appropriate cases involving title have been so long followed as to become a rule of property.
So it is that this Court, notwithstanding the above quoted statement made in the McBride case, is under a duty in the case at bar to determine, independent of the McBride case, whether upon trial of the principal offense alleged in the indictment it was error for the Court to admit proof of the prior convictions, such proof being essential in determining the minimum punishment in the event of guilt of the principal offense alleged.
At the outset of consideration of this question there should be recognized the fact that because a certain procedure in a given case is not improper, it does not follow that a different procedure is improper.
There should also be noted that in the Harris case, 189 Tenn. 635, 638, 227 S.W. 2d 8, 9, mentioned in the heretofore quoted dictum, this Court observed by inference that “the rule that evidence relevant to the issue in a criminal case is admissible notwithstanding the fact that it shows the defendant guilty of a crime for which he is not on trial.” Previous convictions here are relevant to the issue to the extent that they go to the minimum amount of punishment which the jury must inflict if the State proves its case to the satisfaction of the jury.
While the authorities are not in full accord, see 58 A.L.R. 64, et seq., the majority rule seems to be that it is a permissible practice for the State to prove the prior convictions upon the trial of the principal offense charged. This majority rule is stated in 25 American [555]*555Jurisprudence, page 270, under Section 23 of the Chapter on Habitual Criminals as follows:
‘ ‘ The question whether the fact of the prior conviction of the defendant may or should be alleged in the indictment and proved upon the trial for the principal offense, or considered apart from his convictions for the principal offense, has not received a uniform answer. Generally, the courts permit allegation and proof of the prior conviction upon trial of the principal offense, and it has been held that this is essential.”
As to such evidence being prejudicial, the necessary conclusion is that relevant evidence is not made irrelevant because it is prejudicial. Also, such a problem is legally considered solved by a jury instruction of the trial court that the evidence of previous convictions must be considered only with reference to the rmninrmm amount of punishment to be assessed. That practice is followed when in cross-examination of a defendant he is required to admit previous convictions reflecting upon his credibility.
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[551]*551Me. Justice Tomlinson
delivered the opinion of the Court.
This is an appeal from a conviction of driving while intoxicated with punishment fixed by the jury at a fine of $250 and confinement in the workhouse for 11 months and 29 days.
The State invoked upon the trial Code, Section 59-1035 providing that for the third or subsequent conviction of so driving a fine of not less than $50 and confinement at not less than 60 days is required.
The indictment did not give notice until the case was called for trial that Code, Section 59-1035 would be invoked. Thus, during the introduction of its proof in chief, the State, over the objection of Frost, introduced evidence of three prior convictions of Frost of driving while intoxicated. It is insisted that such procedure was prejudicial error.
The contention of Frost is that evidence of such previous convictions should not have been offered until after the jury had considered his guilt or innocence on the charge of driving while drunk on the occasion alleged in the indictment, and if, as to that occasion, a verdict of guilty had been returned, then, but not until then, evidence of the previous convictions was permissible.
The basis of the foregoing contention is that evidence of previous convictions before the jury has found him guilty of the offense charged in the indictment tends to [552]*552prejudice tlie jurors against the defendant in the consideration of his guilt or innocence of the offense charged in the indictment, notwithstanding an instruction of the Court that such previous convictions should be considered only in connection with the minimum punishment required by the jury in the event it found him guilty of the offense charged.
In McBride v. State, 200 Tenn., 100, 290 S.W. 2d 648, the procedure here insisted upon by Frost was followed. It was attacked as error by McBride, his insistence being that the procedure should have been the same as that followed in this, the Frost case. This Court held in the McBride, case that it was not error for the Trial Court to withhold from the jury evidence of previous convictions until it, the jury, had considered the guilt or innocence of McBride as to the offense charged in the indictment and returned a verdict of guilt thereof.
Such holding in the McBride case was undoubtedly correct and in accord with the general rule. That rule is stated in 24 C.J.S. Criminal Law sec. 1969(b), p. 1167, wherein, in dismissing the order of trying the issues in a prosecution of accused as a second or subsequent offender the rule is stated to be that:
“In the absence of statutory provisions relating thereto, it has been held that the manner of presenting issues is discretionary with the trial court, * *
But this Court, every member concurring therein, went further in the McBride case than simply determining the issue, to wit, whether the Trial Judge committed error in the procedure which he followed. And in going he-[553]*553yond tlie issue for decision this Court said (290 S.W. 2d 651):
“* '* * it could not have been handled in any other way. The other offenses were violations of the liquor laws and the introduction of same into evidence before the jury found him guilty would have violated the rule in regard to the admissibility of other offenses as fully discussed in Harris v. State, 189 Tenn. 635, 277 S.W. 2d 8 and would have been prejudicial to defendant even though admitted solely for the purpose of aiding the jury in the determination of what punishment they should assess if they found him guilty.”
It is quite obvious that the foregoing quoted statement was dictum. It falls squarely within the clear definition of that word as reiterated in Staten v. State, 191 Tenn. 157, 159-160, 232 S.W. 2d 18, 19, as follows:
“Courts sometimes go beyond the point necessary for a decision in a lawsuit and make expressions on certain things there involved which are not necessary for a determination of the lawsuit. Such statements by a court are known as dictum. * * * and is, therefore, not a controlling statement to courts when the question rises again that has been commented on by way of dictum. ’ ’
Or, as held in State ex rel. Lea v. Brown, 166 Tenn. 669, 678, 64 S.W. 2d 841, 844, 91 A.L.R. 1246, if statements in an opinion
“go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision,”
[554]*554unless, of course, such statements in appropriate cases involving title have been so long followed as to become a rule of property.
So it is that this Court, notwithstanding the above quoted statement made in the McBride case, is under a duty in the case at bar to determine, independent of the McBride case, whether upon trial of the principal offense alleged in the indictment it was error for the Court to admit proof of the prior convictions, such proof being essential in determining the minimum punishment in the event of guilt of the principal offense alleged.
At the outset of consideration of this question there should be recognized the fact that because a certain procedure in a given case is not improper, it does not follow that a different procedure is improper.
There should also be noted that in the Harris case, 189 Tenn. 635, 638, 227 S.W. 2d 8, 9, mentioned in the heretofore quoted dictum, this Court observed by inference that “the rule that evidence relevant to the issue in a criminal case is admissible notwithstanding the fact that it shows the defendant guilty of a crime for which he is not on trial.” Previous convictions here are relevant to the issue to the extent that they go to the minimum amount of punishment which the jury must inflict if the State proves its case to the satisfaction of the jury.
While the authorities are not in full accord, see 58 A.L.R. 64, et seq., the majority rule seems to be that it is a permissible practice for the State to prove the prior convictions upon the trial of the principal offense charged. This majority rule is stated in 25 American [555]*555Jurisprudence, page 270, under Section 23 of the Chapter on Habitual Criminals as follows:
‘ ‘ The question whether the fact of the prior conviction of the defendant may or should be alleged in the indictment and proved upon the trial for the principal offense, or considered apart from his convictions for the principal offense, has not received a uniform answer. Generally, the courts permit allegation and proof of the prior conviction upon trial of the principal offense, and it has been held that this is essential.”
As to such evidence being prejudicial, the necessary conclusion is that relevant evidence is not made irrelevant because it is prejudicial. Also, such a problem is legally considered solved by a jury instruction of the trial court that the evidence of previous convictions must be considered only with reference to the rmninrmm amount of punishment to be assessed. That practice is followed when in cross-examination of a defendant he is required to admit previous convictions reflecting upon his credibility.
The conclusion of this Court is that it was not improper upon, and as a part of, Frost’s trial of the principal offense of driving while intoxicated alleged in the indictment to admit evidence of prior convictions of Frost, provided the evidence was at all competent in the lawsuit for any purpose, since the defendant did not testify.
The statute invoked by the State for the second or third offense of driving while drunk is 59-1035. The concluding provision of that statute is that the indictment need not allege such prior offense, but proof thereof [556]*556upon the trial will be sufficient to warrant the mandatory increased punishment.
Just such a provision was written into our Habitual Criminal Statute prior to the 1950 amendment carried at Section 40-2801 T.C.A. But that provision, before elided in 1950, was adjudged a violation of the due process clause of our Federal Constitution, Amend. 14, in the habeas corpus proceedings instituted in the Federal Court years after his conviction in the case of Rhea v. Edwards, D.C., 136 F.Supp. 671. This adjudication was upheld by the Federal Circuit Court 6 Cir., 238 F. 2d 850. The decision was, of course, followed by this Court in a like situation in the recently decided, but unreported case from Knoxville of James E. Bailey v. State.
Therefore, it must be held that the concluding provision of Code, Section 59-1035 purporting to authorize proof, and conviction and mandatorily increased punishment for the second or third offense of driving while drunk without previous notice thereof given to the defendant in the indictment, or otherwise, is, in so far as it purports to dispense with notice, invalid in that it is a violation of the due process clause of the State and Federal Constitutions.
Evidence of such second and third convictions offered by the State in this case in the course of presenting its evidence in chief was not, therefore, competent. The fact that the jury fixed an imprisonment of 11 months and 29 days is affirmative evidence that such incompetent evidence was detrimentally prejudicial to Frost in whose behalf no evidence was offered.
[557]*557The fact that Frost, in objecting to this evidence, did not specify that a ground of his objection was a violation of his rights under the due process clause for lack of notice does not lessen the authority of the Courts to so hold when such violation becomes apparent to it. Remine v. Knox County, 182 Tenn. 680, 692, 189 S.W. 2d 811.
In fact, it would seem to be the duty of the Court on its own motion to prevent a violation of the rights of a defendant under the due process clause of our Constitution when such violation appears in the record. In Rhea v. Edwards, supra, Rhea made no point of the violation of this constitutional right under the due process clause upon the trial of the prior offense charged in the indictment, but when habeas corpus proceedings were instituted years later on that ground such proceeding was sustained, and Ehea released.
Because of the violation of Frost’s constitutional right in the respect noted, the judgment convicting him will be reversed and the cause remanded for a new trial in accordance herewith.
Mr. Justice Swepston concurs in the results reached herein, but disagrees with this opinion in a certain respect, and for the reason, stated in his concurring in result opinion.