(concurring in part and dissenting in part).
Assuming that the proper foundation was laid (see State v. Weston, 232 La. 766, 95 So.2d 305), appellant would, in my opinion, be entitled to a new trial on his Bill of Exceptions No. 4, which was taken to the ruling of the court in refusing to require the State to produce the statement which had been given by the main prosecuting witness, Sergeant John Edward Bray, to Guy Bannister, Assistant Superintendent of Police.
On the other hand, I cannot subscribe to the ruling of the Court discharging appellant on the theory that no evidence whatever was adduced at the trial below to sustain the charge of malfeasance in office, in that appellant intentionally refused and failed to arrest members of the Police Department under his authority and command, knowing that such officers were committing public bribery and knowingly permitted them to fail to perform their duty to refrain from committing public bribery.
Since the record is replete with evidence that a system of public bribery was being conducted at the third precinct station of New Orleans during appellant’s service there as one of the Captains, it is manifest that the only question which the judge was called upon to decide was whether appellant knew of the system and intentionally failed in his duty to enforce the law. This involved a determination of a pure question of fact as our law plainly provides that intent or guilty knowledge “ * * * need not be proven as a fact, it may be inferred from the circumstances of the transaction”. See Article 445 of the Code of Criminal Procedure (R.S. 15:445) and State v. Leonard, 162 La. 357, 110 So. 557.
By concluding in the instant case that the trial judge was without right to infer that, in view of all the circumstances disclosed by the evidence, appellant must have been aware of the graft system being literally conducted under his nose, I respectfully *979suggest that the majority is reversing the lower court on a question of fact and thus is assuming appellate jurisdiction which does not reside in this Court by the specific provisions of Section 10 of Article 7 of the Constitution.
In addition, I feel impelled to note again, as I did in my dissenting opinion in State v. Harrell, 232 La. 35, 93 So.2d 684, that, although the contention that there is no evidence to sustain the verdict is presented by way of a bill of exceptions taken to the overruling of a motion for a new trial (to which is attached all of the evidence adduced below), the appellant is ordered discharged when, under his own plea, the best he should obtain is a new trial. Since the court persists in this practice, it seems to me that a new procedural method, such as a demurrer to the evidence, should be devised so that the pleadings in these cases will conform to the orders rendered.