This is an action of libel, brought against the defendant corporation, the publisher of the Rutland Herald, a daily newspaper. Trial was had by jury, with verdict for the defendant and the cause is before us on the plaintiff’s exceptions.
*377 The article upon which this action is based, was published in the Rutland Herald of November 19, 1936 and is as follows:—
“BROTHERS AWAIT
TRIAL FOR THEFT
Arthur Lancour, 23, Locked
Up with Floyd, 14;
Store Robbery Alleged
Arraignment in Rutland Municipal court of Floyd Lancour, 14, arrested on Tuesday on a charge of robbery while armed, and his brother, Arthur, 23, who was taken into custody yesterday in connection with the theft of nine revolvers at the Wilson Clothing Company store on Merchants Row, was postponed yesterday by State’s Attorney Asa S. Bloomer, pending further investigation of the case.
The pair, sons of Mr. and Mrs. John Lancоur of Evelyn street, are being held in Rutland city jail until their cases are presented in court.
Arthur was arrested on information given to police by the younger brother, it is said. According to authorities, Floyd in his alleged confession, stated that Arthur waited outside the window in the rear of the clothing store while Floyd climbed through a broken window the second time to destroy possible сlues, left behind. The revolvers stolen are valued at $150. The burglary took place late Saturday night.”
*378 The defendant filed the general issue and special pleas which denied that the publication charged or purported to charge that the plaintiff was guilty of any criminal offense or that its language warranted or was reasonably susceptible of suсh a construction; alleged that the publication was a fair, full and correct report of the proceedings in the Rutland Municipal Court in connection with the complaint filed and warrant issued in the case against the plaintiff and of the proceedings incidental and preliminary thereto and of the charges and claims asserted therein, did not purport to express any comment or opinion as to the guilt or innocence of the plaintiff, and was made without malice or evil intent; and averred that, as the publisher of the newspaper, it was' lawfully entitled and privileged to publish full, fair and impartial reports of judicial proceedings had in the lawfully constituted courts of this State, including the reports cоncerning arrests of persons charged with offenses against the law and the claims asserted in connection therewith by the lawfully constituted public authorities charged with the enforcement of the law.
The facts that appeared in the evidence were these: During the night of Saturday, November 14, 1936, the store of the Wilson Clothing Company in the City of Rutland was broken into and a number of revolvers stolen. On the following Tuesday the plaintiff’s brother, Floyd Lancour, fourteen years old, was arrested in the town of Wallingford on another charge. Having been brought to Rutland and interrogated by the police he confessed to the burglary of the Wilson store and implicated the plaintiff in its commission saying that the latter waited outside while he made a second entry into the store to remove possible finger prints. The plaintiff was found at his home early in the evening and taken by two policemen to the jail, where fie was questioned and denied participation in the crime. The State’s Attorney was informed by telephone and he directed the police to arrest the plaintiff, saying that he would later issue the warrant. The plaintiff was thereupon arrested and lodged in jail. A warrant was issued on November 20, and the plaintiff was arraigned in the Rutland Municipal Court on November 25, and, having pleaded not guilty, bail was fixed at $1000, and being unable to furnish security in this amount, he remained in jail until December 5th, when he was discharged by the court *379 for lack of evidence. Information of whаt Floyd had said relative to the plaintiff’s alleged complicity in the crime was given to a reporter of the defendant by a detective who had taken part in the interrogation of the boy.
The jury were instructed that the article in question was not, as a matter of law, libellous, and it was left to them to find whether such was its import; that it should be construed as a whole, inсluding the headline, and taken in the sense in which the readers to whom it was addressed would ordinarily understand it; and that if, from reading the entire article, they should find that those who read it would ordinarily understand that the defendant was accusing the plaintiff of committing the crime of burglary or larceny, or being an accomplice in the commission of these crimes, the article was libellous.
This was, of course, a ruling that the language of the publication was ambiguous, admitting of more than one meaning, hence for the jury to construe. The plaintiff seasonably presented a number of requests for instructions, all of which went to the point that the publication was unambiguous, and should be ruled upon by the court as a matter of law and excepted to the failure to comply with them, and also took an exception to the charge as given.
The meaning of an alleged libel is to be gathered from the whole publication
Norton
v.
Livingston,
The publicаtion of the fact that a person has been arrested, and upon what charge, is not actionable if true, “but if to this fact is added, by way of comment, words which amount
*380
to an accusation that the charge is true, or comment which assumes the guilt of the person arrested, by headlines or otherwise, the mere fact that the person was arrested upon thе charge related is no justification for words imputing guilt.”
Commercial Publishing Co.
v.
Smith,
Here, in addition to the fact of the arrest and the charge upon whiсh it was based, the defendant published the statement of Floyd Lancour, which unequivocally accused the plaintiff of complicity in a felony, the falsity of which is not disputed. The fact that it was set forth as being a part of Floyd’s alleged confession does not detract from its libellous character, for “the fact that the charge was qualified by the words ‘it is allegеd’ or their equivalent does not absolve the defendants from responsibility for publishing it. An accusation purporting to rest on hearsay is none the less defamatory.”
Maloof
v.
Post Pub. Co.,
It is said in
Skinner
v.
Grant,
The article published by the defendant contained language which taken in its plain and natural meaning and according to the sense in which it appears to have been used, wаs not ambiguous, and was defamatory in that it charged the plaintiff with complicity in the commission of a felony. It was error to submit its construction to the jury.
Howland
v.
Blake Mfg. Co.,
In further instructing the jury, the Court said: “The defendant on its part claims that the article of November 19 was privileged in that it was a newspaper, had a right to publish the article, and was not liable in the absence of actual malice. The Court charges you that the article of November 19 was not privileged as a matter of law and leaves it to you to find whether the defendant is liable.’’ The plaintiff claims'that this language *382 “was plainly a ruling of law that the defendant had failed to sustain its plea of privilege by sufficient evidence, and its effect was to remove that issue from the consideration of the jury;” and that, since the defendant took no exception to this instruction, no question of privilege has been reserved for our attention.
But a charge is not to be construed piecemeal but as a whole.
Flanders
v.
Newport Trucking Co.,
It is clear, therefore, that the question whether the publication was privileged was left to the jury and that that portion of the charge which the plaintiff regards as a ruling of law, thus removing the issue from the case, did not have this effect, and should be construed only as meaning that, in the opinion of the сourt, it could not be said as a matter of law that the privilege existed, upon the assumption that the jury should find that the publication was libellous.
The propriety of the instruction last quoted was, however, challenged by exceptions taken by the plaintiff to the charge as given and to the refusal of the court to comply with various requests to charge upоn the subject. The issue of privilege is therefore before us. These exceptions are numerous and detailed, but as they all raise the same question in one way *383 or another they need not be considered singly. Both parties regard the answer to the question to be found in the application of the rules of law pertaining to the publication of newsрaper accounts of judicial proceedings.
That a qualified privilege exists where such account is fair, impartial and substantially accurate, even though it may contain matters otherwise libellous, is well settled. See
Shurtleff
v.
Stevens,
There is, however, a diversity of opinion as to when a given proceeding is judicial and when it is not. In Massachusetts the rule is that the principle of qualified privilege “is limited to matters which really have been made the subject of judicial action. It does not give the right to publish statements made in declarations or other papers filed in court on the ground merely that they have been placed on the files of the сourt, or until they
*384
have been brought to the attention of the court and some judicial action has been taken on them. ”
Lundin
v.
Post Publishing Co.,
On the other hand, the publication of the contents of a complaint containing scandalous matter, entered in court, but withdrawn before any judicial action had been taken upon it, was held, in
Campbell
v.
New York Evening Post, Inc.,
The various decisions bearing upon both sides of this quеstion are set forth in Annotations to be found in 12 L. R. A. (N. S.) 188, 38 L. R. A. (N. S.) 913, 52 A. L. R. 1438, and 104 A. L. R. 1124, and it appears that the decided weight of present authority favors the rule followed in Massachusetts.
But, however this may be, we do not regard a preliminary police investigation as a judicial proceeding or the publication of a statement made in the course thereof by the self confessеd perpetrator of a crime concerning an alleged accomplice as within the protection of a qualified privilege. Information of this nature given out by the police is not to be considered as a statement of facts developed on a judicial investigation or the statement of a fact resulting from a judicial investigation.
Arnold
v.
The Sayings Company,
The defendant relies upon
Williams
v.
Journal Co.,
No doubt it is desirablе that the public may know that the police and other officials charged with the duty of detection and arrest for crime are acting upon reasonable grounds in the discharge of their function. But, weighing the social values involved, it seems better to confide in the diligence and discretion of such officials, rather than that any person should be subjected tо unmerited obloquy through the publication of false accusations made to them in the course of their investigations, the
*386
tendency of which, is, in the words of Ellenborough, C. J., in
Rex
v.
Fisher,
2 Camp. 563, 571, “to prejudice those whom the law still presumes to be innocent and to poison the sources of justice,” And see,
Barrows
v.
Bell,
We hold that there was error in the submission of the issue of privilege to the jury.
In view of what we have said in the foregoing opinion it appears that the question of damages only is left for determination. The remand, therefore, will be for a trial upon this issue. See
Griffin
v.
B. & M. R. R. Co.,
Judgment reversed and cause remanded for trial upon the issue of damages only.