I fully concur in the reversal of the judgment of the district court; but I am not satisfied with all that is stated in the opinion. I do not agree with all the limitations placed on the publication of judicial proceedings or matters directly connected therewith. I think that every newspaper has a right to comment on matters of public concern, provided it is done fairly and honestly. I do not think that such comments are libelous, however severe in their terms, unless they are written and published maliciously. I think the administration of the law, the verdicts of juries, the conduct of suitors, their lawyers and witnesses, are all matters of lawful comment by newspapers as soon as the trial is over.
Attorneys at law are officers of the court in which they practice, and are admitted by its order, upon evidence of their possession of sufficient legal learning and good moral character; they hold their office during good behavior, and can only be deprived of it for misconduct. Therefore any attorney can be protected from libel for anything occurring upon a trial, or for any matter connected directly therewith, to the same extent as any other officer of the court. That, and nothing more.
Of course, if a publisher of a newspaper writes and publishes maliciously any false or libelous matter against an attorney, or any other officer of a court, there is no danger but that the publisher may be properly punished, even if express malice must be proved. The jury have the authority to take all the matters into consideration, and if express malice is established, or if malice is found from the circumstances attend*325ing the publication, the jury will be justified in rendering a verdict of guilty. When it is said that malice must be shown in the case of privileged communications, the term “malice” is used in its legal, not in its popular sense. It is legal malice, if one publishes as true what he knows to be false, or what by proper investigation he might have assured himself was false.
The case of The State v. Cleary was a public trial; the state and the people of the state were greatly interested in its result. If justice miscarried from the act or conduct of any officer of the court during the trial, it was a subject of legitimate newspaper comment. The jury could determine, under the facts and circumstances of this case, whether the comments of the newspaper were made from good or honest motives, upon reasonable grounds, or whether they were maliciously written and published. If the defendant in referring to the trial, or any matters directly connected with the trial, acted solely from good and honest motives, and upon reasonable grounds, he ought not, in my opinion, to be criminally liable.