In this case the imputation of want of chastity in the prosecutrix consisted in the assertion by defendant, *558in the hearing and presence of the parties named, that said prosecutrix was “a whore” or “a damned whore.” “A Avhore” is defined to be “a woman who practices unlawful sexual commerce with men: especially one who does it for hire.” The charge was a general one in contradistinction to one which would impute want of chastity by charging certain specific acts and conduct. In the latter case the specific acts and conduct must be proved as alleged, and the prosecution would be prohibited from proving any other and different acts than the ones alleged. (Patterson v. The State, 12 Texas Ct. App., 458; Conlee v. The State, 14 Texas Ct. App., 222.)
But where the imputation is general, as in this case, then under our statute which allows the defendant in justification to show the truth of the imputation (Penal Code, art. 646), we are of opinion he would be entitled to prove any succession of specific- acts going to establish the truth of such imputation, or from which the jury might reasonably be warranted in finding the imputation to be true. That a woman is “a whore” may be proven by her general reputation, or it may be proven by evidence that she practices unlawful sexual commerce Avith men. If the latter mode be attempted, Ave do not Avell see how it is to be effected othenvise than by showing the successive individual instances in Avhich the commerce has been practiced, and leaving the jury to determine Avhether or not the woman is a whore from the number of times and the circumstances under Avhich she has practiced such unlawful commerce with men. Every act of unlawful commerce Avould tend to establish the truth of the charge, and consequently would be legitimate and admissible evidence.
Where a woman has lived in adulterous intercourse with a man whom she after Avards marries, we do not think such previous adultery would tend to establish in any manner a charge made against her subsequently that she Avas a Avhore. For it is not unreasonable or improbable that by the marriage she has not only repented of her sin but condoned it and become virtuous. Such evidence Avould be remote and foreign to the issue. The charge is, not that the prosecutrix has been or once Avas a Avhore, but that she is a Avhore.
We are of opinion the court did not err in excluding the proposed evidence to the effect that the prosecutrix, before her marriage, had lived in adultery Avith -her husband. But we are of opinion that it was error to refuse defendant the right of proving that she had been indulging in unlaAvful commerce Avith Glofander and others, Avhich proof would clearly have tended to establish appellant’s charge that she AAras “ a Avhore.”
*559The closing paragraph of the court’s charge to the jury was that “ if they (the jury) believe the defendant not guilty they will acquit him.” With, regard to a similar charge in Brinkoeter v. The State, 14 Texas Ct. App., 67, it was said, “ by this charge the jury were in effect told that they must find the defendant guilty unless they believed from the evidence that he was innocent. Such a proposition is contrary to the express provision of the law.” (McMillan v. The State, 7 Texas Ct. App., 142; Code Grim. Proc., art. 640.)
For the errors pointed out the judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered February 11, 1885.]