delivered the following dissenting opinion:
I am unable to concur in that part of the opinion which sanctions the ruling of the trial court in holding that the evidence relating to the so-called compromise was inadmissible, and directing the jury not to consider the same. The defendant McLennan was indicted for a felony, the larceny of horses. The witness Bates Shattuck, a merchant, in answer to the question, “What was the conversation between you and Mr. McLennan about this case?” said:
“Why, Mr. McLennan evidenced a desire, of course, mentioned the case, and evidenced a desire to get it settled out of court if possible on account of its coming at his very busy time of the year, and there was nothing definite stated one way or the other.”
Upon not being heard by all the jurors and requested to again tell the jury, the witness said:
-“This indictment having been brought up against Mr. McLennan, he wished to get it settled and over with if possible, and that is the reason it was mentioned to me. Of course, there was nothing definite said about it, except he wished a settlement if possible out of court.
“Q. He wanted you to approach Mr. Matthews about a settlement?
“A. I was a friend of both parties, and I did that.
“Q. It was by reason of this conversation you had with him you approached Mr. Matthews to settle the case?
“A. Yes, sir.”
*634The witness does not attempt to give the exact language of the defendant, but it is clear from the evidence that he desired and was endeavoring to arrange for a settlement out of court of the criminal action against him after he was indicted, and the .jury might reasonably so infer. It is contended by counsel for defendant that in criminal as in civil cases an offer of compromise is inadmissible under Sections 879 and 1533, L. O. L. The last section provides that:
‘ ‘ The law of evidence in civil actions is also the law of evidence in criminal actions and proceedings, except as otherwise specially provided in this Code.”
But it is otherwise distinctly provided in relation to compromising a felony. Section 1460, L. O. L., enacts:
“A person may be indicted for having, with the knowledge of the commission of a crime, taken money or property of another, or a gratuity' or a reward, or an engagement or promise therefor, upon an agreement or understanding, express or implied, to compound or conceal the crime, or to abstain from a prosecution therefor, or to withhold any evidence thereof, though the person guilty of the original crime has not been indicted or tried.”
The compounding or concealing of a crime is also punishable under Section 2040, L. O. L. Under our statute (Sections 1696 to 1698) only the settlement of a misdemeanor may be made between the parties themselves with the sanction of the court. Section 1699 reads thus:
“No crime can be compromised, nor can any proceeding for the prosecution or punishment thereof be stayed upon a compromise, except as provided in this chapter.”
In his work on Criminal Evidence (Section 117) Mr. Underhill says that:
*635“The rule excluding compromises in civil suits does not apply to criminal proceedings.”
See, also, State v. Soper, 16 Me. 293, 295 (33 Am. Dec. 665), where Mr. Justice Emery said:
“We are not aware that the rule of excluding offers of compromise from being heard in evidence applies to criminal cases. They are not to be compounded. It is not under a searching investigation of acts of larceny, that it is intended a man may buy his peace.”
And State v. De Berry, 92 N. C. 800, the syllabus of which reads thus:
“Where the prisoner, being in jail on a criminal charge, told a party to see the prosecutor and find out if he would consent that the defendant receive 39 lashes and be discharged, held, that such message is relevant and admissible in evidence.”
See 8 R. C. L., § 189.
The language of the defendant imports a different wish than a desire to have the case tried in.a lawful manner. For the reason that he desired to “get the ease settled out of court” he mentioned the matter to Mr. Shattuck. The evidence tended to show an unlawful attempt to compromise or arrange for a settlement of a felony, in order to stifle prosecution, which is inhibited by the statute, and was relevant to show a consciousness of guilt: 12 Cyc. 398. The ruling of the trial court that the jury should not consider the evidence of Shattuck quoted above was favorable to the defendant.
In regard to the portion of the charge to the jury as follows: “I charge you that, if you find from the evidence in this case beyond a reasonable doubt that the defendants killed the horses in question for the purpose of concealment, you may consider the same as tending to show the guilt of the defendants of the *636charge in the indictment ’ ’ — it seems that .the scholarly discussion of Mr. Justice Burnett leaves out of consideration the language of the trial court in effect directing the jury that in order for them to consider the matter of the killing of the horses, they must first “find from the evidence in this case beyond a reasonable doubt that the defendants killed the horses in question for the purpose of concealment.”
Therefore the question of the purpose of the killing of the horses was left to the determination of the jury. If the killing was done by defendant for the purpose of concealment, it is difficult to conceive how the matter of wanton injury to animals in violation of Section 1969, L. O. L., which, like the crime charged in the indictment, may be punished as a felony, would figure in the case. The difference between larceny by altering a mark or brand upon horses under Section 1954, L. 0. L., and larceny of such animals by stealing under Section 1950, L. O. L., is so slight that a defendant would receive but little comfort in claiming any distinction in that respect under the evidence in this case. Nor would defendant be prejudiced in any way by the trial court’s failure to consider the crime of larceny by altering brands. Indeed, the minimum penalty for the latter crime is greater than the minimum for that with which the defendant is charged. If a defendant should assert that the evidence showed he was guilty of the former crime instead of the latter,, it might well be said “that the last state of that man is worse than the first.” The words “you may consider the same as tending to show,” appearing in the latter part of the instruction above quoted, are inapt,, and, if taken alone, possibly might be misunderstood by the jury. They are subject to the criticism applied in State v. Rader, 62 Or. 37 (124 Pac. 195). Never*637theless, when such an instruction is coupled with a charge that the jurors are the “exclusive judges of the weight and value of the evidence given upon the trial,” as the jury was instructed in this case, it comes within the sanction of State v. Brown, 28 Or. 147 (41 Pac. 1042), which was a trial for murder in the first degree, as well as within the other cases cited in the majority opinion. An appellate court should not reverse a judgment of conviction without very cogent reasons when the trial court in charging the jury has adhered to the opinion of the higher court.
Over the objection of defendant’s counsel certain witnesses who saw the horses soon after they were killed were permitted to state how long they thought the animals had been dead, to the effect that they looked as though they had been killed the day before. The condition of the carcasses of the animals where the brands had been skinned off and the heads severed would be extremely difficult to describe to the jury so that they could approximate how long the brutes had been killed before they were found. The language of the learned majority opinion upon this question based upon a work of medical jurisprudence illustrates this fact. The plainest way for the witnesses to say how fresh the meat was would be for them to say how long the bodies of the horses appeared to have been dead. An ordinary witness could do this. The ordinary observer — the “man in the street” — • is qualified if it affirmatively appears to the presiding judge that he has had sufficient opportunities for drawing the inference which he proposes to state and the capacity necessary to make and state it. Where the statement, therefore, is largely one of fact, or the ground of necessity compelling the admission .is that the jury cannot draw the inference themselves because the facts *638cannot be fully stated, the qualification of the witness consists, not in skill or special experience, but in the fact that he has had satisfactory data: 17 Cyc., pp. 34, 35. Facts which are made up of a great variety of circumstances, and a combination of appearances-which, from the infirmity of language, cannot be properly described, may be shown by witnesses who observed them ,• and where their observation is such as to justify it, they may state the conclusions of their own minds. In this category may be placed matters involving magnitude or quantities, portions of time, space, motion, gravitation, value and such as relate to the condition or appearance of persons and things: 8 R. C. L. § 186. Mr. Wharton says at page 959 of his work on Criminal Evidence :
“Where any material facts are stated by the witness as warranting the inference that he has sufficient knowledge to form an opinion, it is relevant, but. such conclusion must arise from the witness ’ own personal observation of the facts.”
The men had had experience in butchering and' handling the meat of animals. A witness may be-qualified by practical experience in a field of human-activity conferring on him an especial knowledge not shared by men in general from whom the jury is drawn 17 Cyc. 37.
I am of the opinion that there was no reversible-error as assigned in admitting such testimony or in the trial of the cause, and that the judgment should be affirmed.