filed the following opinion, dissenting in part.
I regret that I am unable fully to concur in the majority opinion herein. I, also, regret that time will not permit a comprehensive statement of the reasons for such inability; however, it would be a dereliction of duty not to outline the same, as this is a case of considerable importance, guiding and limiting, as it does, the news media of this State.
The decision affirms a judgment in the amount of $45,000. The judgment was rendered as a result of an editorial comment, wherein the appellee was referred to as “infamous,” and it was stated that he, when a witness against Commissioner Hepbron at a hearing before the City Delegation on March 13 and 14, 1959, was “a man with a motive.” (Kirby had been suspended by Hepbron, and was formally charged, tried and found guilty by Hepbron in February, 1959, of “planting” evidence in the 408 Bar raid.) The defense, as is quite usual in this type of case, was “fair comment,” and whether this defense be considered as a “qualified privilege,” or “without the scope of actionable defamation,” it is a complete bar when properly established.
The judgment was obtained below, and is sustained here, by limiting the evidence on the issue of “fair comment” to what transpired at two hearings held in Annapolis on charges against Commissioner Hepbron (one before the City Delegation and the other before Governor Tawes), and the rather *287technical and thin distinction as to whether the statement that Kirby was “infamous” and “a man with a motive” was a “misstatement of fact” (with the evidence limited as noted above), or an “expression of opinion.”
I shall not detail all of the evidence against Kirby that was excluded from consideration on the question of “fair comment.” In narrative form, it consumes more than thirteen pages of appellant’s brief. It discloses an illegal, disgraceful, and reprehensible course of conduct by an officer of the Police Department, whose duty it was to uphold the law and sustain the dignity of, and the public confidence in, his said Department. This evidence shows his close association with other members of the Department who were dismissed from the Department and convicted of crimes; his close association with one member who committed suicide when the Department was under investigation; that he knew, and probably participated in the production, of perjured testimony being given by other officers to obtain convictions in a criminal case; that in one case, after a Judge of the Supreme Bench had found a man guilty of a crime, principally upon Kirby’s testimony, the verdict and sentence were stricken and the man released, the Judge obviously finding, after subsequent investigation, that Kirby had deliberately “framed” the defendant by false testimony; and that he was accused by a fellow officer of having that officer produce and present at a magistrate’s hearing false evidence against two defendants, and, after their being sentenced to prison by a Judge of the Supreme Bench, upon stipulation of the State’s Attorney that “fraudulent evidence” had been used at their trial, they were released.
This excluded from consideration on the fair comment issue evidence further disclosed that when he was accused by his fellow officer, as noted above, he first agreed to take a lie-detector test, which he later declined to do; that he was then ordered by the Commissioner to take the test, but he refused; that he was then suspended from the force; that he was requested by the Judiciary Committee of the City Council, who were conducting an investigation of alleged illegal wire tapping, to testify before them, which he declined to do; that due to the scandals involving Kirby and other members *288of the Rackets Division, thirty, or more, gambling indictments were stetted because “of the State’s inability to produce the necessary credible evidence required for successful prosecution”; and that he was formally charged by the Commissioner with planting false evidence and of twice refusing to obey orders of a superior officer, found guilty on all three charges and dismissed from the force. Most, if not all, of this was aired in the public press and was readily accessible to the public at large. The record discloses that Kirby’s name appeared no less than 183 times in 65 newspaper articles offered in evidence; 23 times his name was in headlines, and three times his photograph accompanied the articles.
To me, the above clearly establishes the fact that Kirby was “infamous,” and “a man with a motive” when he appeared against Commissioner Hepbron at the hearing in Annapolis. A policeman, whose sworn duty it is to obey the law and protect the State’s citizens, who deliberately plants evidence and has others commit prejury in order to obtain convictions in criminal cases, is so obliquitous that it is difficult to use polite but appropriate language to describe him adequately. And, without reciting or analyzing, at any great length, the authorities which are ably and, to me, convincingly set forth in appellant’s brief, it seems clear that the above evidence was admissible on the issue of “fair comment,” and it demonstrates that the statements made in the publication were “fair comment,” and not actionable. In fact, when Kirby’s background is considered, the statements should, perhaps, be termed “complimentary comments,” for, if ordinary parlance were permissible, there immediately come to mind many adjectives and terms that are far less complimentary, although not less expressive.
To me, the result reached by the majority is so regret-able, and the law so plainly shows that an opposite conclusion is the proper one, that it is difficult to refrain from setting forth and analyzing the authorities in a rather extensive mode; however, I shall do so only briefly. The crucial point of the majority opinion, as was the decision of the trial court in excluding the evidence outlined above, is based mainly upon two decisions of one-man courts of original jurisdiction *289in New York (from this, it is safe to assume that the Court of Appeals of that state has not, as yet, rendered a decision to like effect). But even if these court decisions are followed, it does not require the result reached hy the majority, as is shown by the following quotation from Cohalan v. New York Tribune, Inc., 15 N. Y. S. 2d 58, one of said decisions, when the court, in sustaining the sufficiency of a plea of fair comment, said: “On the basis of the facts stated in the editorials and the other facts alleged in the defenses a jury might find that the conclusions and comment contained in the editorials were within the realm of fair comment. * * * Nor does there appear to be any merit in plaintiff’s contention that all the true facts forming the basis of the so-called fair comment must be found within the four corners of the allegedly defamatory editorials. * * * The facts relied upon in the editorials involved in the present action had become matters of public record prior to the publication of the editorials [as had happened in the case at bar], and as such were accessible to any one who wished to examine the record. They did not have to be specifically enumerated and described in the editorials themselves in order to confer defeasible immunity upon the defendant.” (Italics supplied.)
Section 606 of Restatement, Torts, cited by the appellant, also seems directly in point and correctly states the rationale of the decisional law on privileged criticism. It reads:
“(1) Criticism of so much of another’s activities as are matters of public concern is privileged if the criticism, although defamatory,
(a) is upon,
(i) a true or privileged statement of fact,
or
(ii) upon facts otherwise known or available to the recipient as a member of the public, and
(b) represents the actual opinion of the critic, and
(c) is not made solely for the purpose of causing harm to the other.
“(2) Criticism of the private conduct or character *290of another who is engaged in activities of public concern, insofar as his private conduct or character affects his public conduct, is privileged, if the criticism, although defamatory, complies with the requirements of Clauses (a), (b) and (c) of Subsection (1) and, in addition, is one which a man of reasonable intelligence and judgment might make.”
See also Hammett v. Times-Herald, Inc., No. 7066 U. S. D. C. for the District of Maryland, wherein Judge Thomsen gave a charge based upon this section; 1 Harper & James, Law of Torts, pp. 458, 459; Roerich v. Sun Print. & Publ. Ass'n. 296 N. Y. S. 151; Odgers, Libel & Slander, pp. 515, 516; and the additional authorities cited by the appellant on pp. 25-41 of its brief.
I conclude the authorities with two short quotations: the first .is from 1 Poe, Pleading & Practice, § 183; the second from this Court’s opinion in McBee v. Fulton, 47 Md. 403, 426.
“* * * the received American doctrine is that so long as the press does not convert itself into an organ by which, under pretense of promoting the public good, private rancor, personal hostility and individual malice are really sought to be gratified, it must be left free to discuss, almost without restriction, not only the end and aim of every public measure, but also the character and conduct, together with the personal qualifications of every public man * * “Such reports [newspaper account of a preliminary hearing before a Justice of the Peace] are now and have long been daily made in almost all the public journals of the country, and we are of opinion they are thus privileged * * *. This privilege, which may be set up under the plea of not guilty, is, as we have seen, not absolute, but qualified. The qualifications or limitations attached to it have already been indicated. The reports * * * must be substantially correct and not garbled or partial, and made bona fide or without malice, and whether they are of this character is *291in all cases where this defense is set up * * * a question of fact for the jury. And the same thing is true of the comments accompanying such reports; they must be correct and fair and it is for the jury to say whether they are so or not.”
It is difficult to see how the jury could intelligently make this determination in the case at bar, with the vital and critical evidence bearing upon the issue eliminated from their consideration. Just because the evidence offered herein on the defense of “fair comment” proved more than was necessary for such a defense (and, in fact, established the truth of the publication complained of) did not render it inadmissible. Chapman v. Calder, 14 Pa. (2 Harris) 365; Rosenberg v. Mason, 160 S. E. 190 (Va.). Cf. Foley v. Hoffman, 188 Md. 273.
It has always been dangerous to plead justification in Maryland; after the decision of Domchick v. Greenbelt Services, 200 Md. 36, it became almost prohibitive (see 13 Md. L. Rev. 357); now the decision in the instant case, paring down and circumscribing the defense of fair comment, seems to place the publishers almost in a strait jacket, which, to me, is most undesirable and contrary to “the received American doctrine” as enunciated by Professor Poe.
I agree with that portion of the majority opinion which holds that it was not prejudicial error to refuse to require the production of the records of the Grand Jury reporter.