concurring specially. I concur in the judgment
of reversal, for the reasons indicated in the majority opinion; but do not concur in the ruling that the petition set forth a cause of action based on a publication charging the complainant with an offense punishable by law, so as to render it libelous per se. Section 4432 of the Civil Code (1910) provides as follows: “A fair and honest report of the proceedings of legislative or judicial bodies, or of court proceedings, or a truthful report of information received from any arresting officer or police authorities, shall be deemed privileged communications; and in any action brought for newspaper libel the rule of law as to privileged communications shall apply.” It is with the utmost deference to the feelings and sensibilities of the plaintiff that I express the views embodied by this special concurrence, dissenting from certain rulings set forth by the majority opinion; but as I see it, the publication did not, by any sort of reasonable interpretation, in and of itself accuse the plaintiff of having committed the offense of larceny, but, on the contrary, plainly and manifestly sought to report the undisputed fact that such a charge had been legally instituted against him. This is made evident at least three times in the short newspaper notice complained of. It is spoken of as a court “charge;” it is repeated that he was “arrested on a charge” in the police court; and in proceeding to narrate in more detail the charge referred to, in using the word “theft” as complained of, the report says that the “theft is said to have taken place,” etc., thus plainly purporting not to formulate a charge, but merely to relate back to what had already repeatedly been said as constituting an official proceeding in the police court. It is, therefore, my opinion that after having twice plainly stated that the account was simply seeking to narrate a police-court proceeding, that, in undertaking to amplify the nature of the charge thus twice mentioned, the use of the language “the theft is said to have taken place,” etc., could not, by any sort of fair, reasonable, or ordinary interpretation, be construed as meaning that the newspaper was undertaking to *752formulate a charge of theft. I therefore do not think' that under any possible interpretation the defendant could have been guilty of printing a libel per se by reason of having charged the complainant with the commission of a crime punishable by law.
It may be that the newspaper could have properly used the word “alleged,” or its equivalent, one more time in seeking to amplify the nature of the official charge twice referred to, although to have done so would perhaps have amounted to tautology in saying that the “alleged” theft “is said” to have taken place, etc. It might reasonably be asked how often must a newspaper repeat that it is merely seeking to set forth an account of a court proceeding, or to give a truthful report of information received from an arresting officer in undertaking to narrate such a proceeding. If twice or thrice is not often enough, how many times must it be required, Individuals are entitled to the safeguards set by the law for the protection of their reputations against all persons, including newspapers, but freedom of speech and freedom of the press are equally important. To carry anything to extreme is not the spirit and purpose of the law. The plaintiff in the court below has my sympathy in having been subjected to an unfounded and somewhat ridiculous- charge, but it was the court proceeding itself and not the newspaper which brought the embarrassment into being, and a newspaper is not to be expected or required to do more than other persons in abiding by the statutes enacted for the common good. Occasionally we find evidence that newspapers seem to labor under a delusion that they, unlike other people, are not privileged to report facts as facts. With no desire or purpose to interject any degree of levity in what I have to say, a familiar anecdote illustrates this idea, wherein it was printed: “It is rumored that a card party was given on yesterday at the home of Mrs. Soandso to a number of reputed ladies. It is alleged that punch was served by Mrs. Soandso, who claims to be the wife of a well-known merchant by that name.” Newspapers stand like everyone else; they are not blameable for printing facts which are true, nor are they blameable for setting forth privileged communications, including “a fair and honest report of the proceedings of legislative or judicial bodies, or of court proceedings, or a truthful report of information received from any arresting officer or police authorities.”
*753The truth is that too much reliance is put upon the words “it is rumored,” “it is said,” and “it is alleged,” since there is a legal maxim, applying to everybody, that “tale bearers are as bad as tale makers.” Except as relates to what are called privileged communications, the question is' not whether somebody says a thing, even though you give your authority, but whether what is said is in fact true. In the instant case, dealing with one branch of privileged communications, a newspaper is undertaking to report the proceedings of a court or giving information received from an arresting officer or police authorities. In my opinion it is clear that in this publication narrating a police-court case there is nothing libelous per se, and that the use of the word “theft,” in the manner and in the connection indicated, does not charge the complainant with a crime, but merely set forth that he had been thus accused, and I therefore dissent from my more learned bretheren in so holding.