dissenting.
The question presented in the case is, to my mind, not free from doubt. Upon this subject here presented there is a dearth of authorities. The usual rule, and that declared by the opinion in this case, does not seem to have been followed in all cases of this kind.
In Fairfax v. N. Y. C. & H. R. R. R. Co., 73 N. Y., *395167, which was a civil action for the value of cLihing alleged to have been lost by the defendant, in the action, the court of appeals, by Earle, J., says p. (172): “ The court did not err in charging the jury that the plaintiff was entitled to recover the full value of the clothing for use to him in New York and not merely what it could be sold for in money. The clothing was made to fit plaintiff, and had been partly worn. It would sell for but little if put into market to be sold for second-hand clothing, and it would be a wholly inadequate and unjust rule of compensation to give plaintiff in such case the value of the clothing thus ascertained. The rule must be, the value of the clothing for use by the plaintiff. No other rule would give him a compensation for his damages. This rule must be adopted because such clothing cannot be said to have a market price, and it would not sell for what it was really worth.”
In 2 Bishop on Criminal Procedure, sec. 751, the author, in discussing this subject, says: “Any evidence from which the jury can infer the value of a stolen chattel is competent, (Houston v. State, 13 Ark., 66) as: What the owner testifies of its value to him (Cohen v. State, 50 Ala., 108); the opinions of witnesses acquainted with like property,” etc.
It was shown upon the trial what the clothing, alleged to have been stolen by the plaintiffs in error, had cost when it was purchased, how much it had been used, to what extent it was worn, and its value to the owner.
Plaintiffs in error called two witnesses — one a pawnbroker, the other a keeper of a second-hand store — and sought to prove by them the value of the goods in the market, they placing it much lower than the other witnesses.
We are unable to see why the rule stated in the authorities above cited should not be applied to cases of this kind as well as in civil cases. The question to be decided was, What was the value of the property at the time it was taken. That question would necessarily depend, to some extent, *396upon what it would cost to replace it with goods of the same quality and grade as those taken. The reasonable value of the property would depend upon the amount of service they could render to their owner. The actual intrinsic válue was to be ascertained. This could not be done by placing them in a second-hand clothing store, or a pawn shop, and running the risk of finding another person whom they would fit, aud to whom they would be as valuable as to the original ownér. Again, I do not think it was shown by the evidence introduced by plaintiffs in error, nor perhaps could it be, that such property has a regular merchantable market value.
As stated in substance in the ‘case above cited, the clothing was especially adapted to the service of its owner. For him the suit had practically the same value as a new one, it having been worn but little. Now, to say that because there was no demand for partly worn clothing, and that it had no market value according to its quality, and that as one method of disposing of such property was by sacrificing it for perhaps less than half what it was worth in a second-hand store, taking the hazard of finding another person whom it would fit, and to whom it could be sold, the value must be fixed by that standard, rather than the intrinsic worth of the property, for the use to which it had been dedicated, would be an unjust rule either in a civil action or a criminal prosecution for the larceny of the property.