¶1(concurring in part and dissenting in part).
¶2Assuming 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.
¶3On 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.
¶4Since 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.
¶5By 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.
¶6In 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.
¶7(dissenting).
¶8The bill of exceptions found by the majority to have merit, and as a result of which they have decreed a reversal of the conviction and sentence, presents, in my opinion, purely a question of the sufficiency of the evidence. Of such a question we have no jurisdiction.
¶9Therefore, I respectfully dissent.
¶10(dissenting).
¶11I do not think that there is any merit in Bill of Exception No. 4. In my view, the defendant in a criminal case is not entitled to the production of a prior written statement of a State’s witness in the hands of a police officer or the district attorney simply because on cross-examination by the defense the witness answers in the affirmative the question of “whether a copy would refresh his memory”.
¶12In State v. Weston, 232 La. 766, 95 So. 2d 305, to which the majority opinion in the instant case refers, this court in discussing Bill of Exception No. 6 reserved there made it clear that the defense is entitled to the production of a prior written statement of a State’s witness in the hands of the district attorney or the police only where a proper foundation for the impeachment of the witness has been laid by a showing that the statement sought is contrary to the sworn testimony of the witness, and that when such a foundation is laid, production of the document can be had for the purpose of impeachment.
¶13In the instant case, however, the majority opinion does not say that a foundation was laid to impeach the witness by a showing that the witness had made prior inconsistent statements.
¶14I dissent also from the holding of the majority on Bills of Exception Nos. 1 and 5. The reasons for disagreeing with the majority given by Justice McCALEB in his concurring opinion are correct, and I fully agree with his views on these bills.