¶1On State’s Motion for Rehearing
¶2We have again examined the record in light of the State’s motion for rehearing and remain convinced that under the facts presented the use of the open hand by appellant in slapping the child was not with such an instrument as was reasonably calculated to disfigure her and therefore was not with such an instrument as is referred to in Art. 1167, Vernon’s Ann.P.C. The conclusion reached herein is not in conflict with the opinion in Lee v. State, 66 Tex.Cr.R. 567, 148 S.W. 567, 40 L.R.A.,N.S., 1132, where it was held that disfiguring by throwing carbolic acid in the face was by means of an instrument referred to in the statute as clearly there is a material difference between throwing carbolic acid *737in the face of a person and slapping with the open hand upon the face or lip.
¶3The State’s Attorney construes our opinion as holding- that in cases where a disfiguring is actually effected it is incumbent upon the State to prove a specific intent to disfigure in order to sustain a conviction under Art. 1167, Vernon’s Ann.P.C. We do not so intend to hold as it is the rule that where a disfiguring is actually effected, if the act was committed with evil intent, with legal malice, without reasonable ground for believing it to he lawful and without legal justification, it is wilful and malicious under the statute, whether or not it was committed with a specific intent to disfigure. Davis v. State, 22 Tex.App. 45, 2 S.W. 630; Keith v. State, 89 Tex.Cr.R. 264, 232 S.W. 321, 16 A.L.R. 949, and Rankin v. State, 139 Tex.Cr.R. 247, 139 S.W.2d 811.
¶4The motion for rehearing is overruled.
¶5Opinion approved by the Court.