(dissenting).
When a trial court violates the mandate óf a statute of this state and thereby refuses to accord to the accused the right which the statute gives to him, it is a bad situation. But when this court agrees to, condones, and justifies such action by a trial court it is worse, because the right of one accused of crime to be tried and convicted in accordance with law is not only denied but it is destroyed.
Such is exactly what has happened to this appellant.
Art. 496 of our Code of Criminal Procedure reads as follows:
“If defendant suggests different name
“If defendant, or his counsel for him, suggest-that he bears some name different from that stated in the' indictment, the same shall be noted upon the minutes of the court, the indictment corrected by inserting therein- the name of the defendant as suggested by himself, the style of the cause changed so as to give his true name, and the cause proceed as if the true name had been first recited in the indictment.”
By that statute, the right is accorded to one-accused of and who is to be tried for a violation of the law to be tried under his correct name and to have that correct name stated in the state’s pleading.
Here, the name of the accused was stated in the information as “Alfred (Jaybird) Johnson.”-
When the case was called for trial, one of the first things appellant did was to invoke the rights and privileges which the above statute accorded him by motion, in writing, calling the trial court’s attention to the fact that “Alfred (Jaybird) Johnson” was not his name and that his true and correct name was Alfred Johnson. He asked that the information be corrected by inserting therein his true and- correct name.
*176The trial court refused to grant the motion and to accord to appellant that which the statute gave him as a matter of right. In so doing, error was committed. Myatt v. State, 31 Texas Cr. Rep. 523, 21 S.W. 256, is directly in point.
This court has no right to speculate upon injury or prejudice when a trial court refuses to grant to an accused that which the legislature of this state has given him by statute. If the accused desires to avail himself of that right, it is his exclusive privilege to do so.
Of and within itself, the violation of a mandatory statute is prejudicial error. It is only by such construction that proper respect for and obedience to a legislative mandate can be required of the courts.
Under Art. 496, C.C.P., the legislature has the right and power to give to one accused of crime the right to be tried under his correct name.
Appellant, here, timely and properly requested that right, and it was arbitrarily refused.
If the courts have the power to deny to an appellant the rights which Art. 496, C.C.P., gives to him, then one of two conditions exists: Either this court has repealed that article or it has refused to accord to the legislature the right to make laws governing the trial of criminal cases in this state and has, itself, gone into the law-enacting business.
I refuse to say that our courts have the power to deny to an appellant the rights conferred by Art. 496, C.C.P. I steadfastly insist that when this appellant brought himself within and sought the rights thus conferred, the trial court was without authority to refuse that request.
It is only by that construction that the rights of the legislature to write the laws of this state can be maintained and encroachment upon that right by the courts prevented.
In keeping with the legal proposition that the denial of a right given by statute is prejudicial error, different statutes may be cited but I call attention only to one, and that is the severance statute. Art. 651, C.C.P.
It has always been held, heretofore, that the failure of a *177trial court to grant the right there accorded and properly sought is of and within itself, prejudicial error. Jackson v. State, 123 Texas Cr. Rep. 345, 58 S.W. 2d 1014; McBride v. State, 121 Texas Cr. Rep. 549, 51 S.W. 2d 337; Brown v. State, 125 Texas Cr. Rep. 507, 69 S.W. 2d 411; Willis v. State, 141 Texas Cr. Rep. 297, 148 S.W. 2d 397; Chapa v. Etate, 164 Texas Cr. Rep. 554, 301 S.W. 2d 127.
There is no distinction between such a situation and that here presented.
I respectfully dissent.