The State challenges the correctness of our conclusion that the trial court's failure to permit the introduction of testimony showing that the prosecutrix not only had the reputation of being a common prostitute but was such in fact was reversible error. It is insisted that the facts fail to bring this case within the rule authorizing the admission in evidence of such testimony in a rape case; and, also, that, in view of the facts as a whole, together with appellant's written confession, the failure to admit said testimony was not such an error as would require a reversal of the case.
It must be remembered that appellant's sole and only defense was that the prosecutrix consented to the act of intercourse for pay, and that her outcry was prompted not by the fact that she had been assaulted, but by reason of appellant's failure to pay her more money. Under the authority of Graham v. State,125 Tex. Crim. 210, 67 S.W.2d 296, the proffered testimony was material upon this defensive theory.
We remain convinced that reversible error is reflected by the record.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.