I. It is urged that the only charge in the indictment is that of breaking and entering a store-house, in the night-time, with intent to steal.
The court instructed the jury as follows: “10. In the facts set forth in the indictment are included three crimes, of* different degrees of enormity — First, the crime of larceny in a store in the night-time, the highest; second, the crime of' breaking and entering a store in which goods, merchandise, and valuable things were kept for use, sale and deposit, with intent to commit larceny, the next lower offense; third,, the crime of simple larceny, the lowest.”
*372The jury were further instructed that under the indictment a verdict might be found for any one of the three crimes above named, if the evidence should be found sufficient to warrant such verdict.
The indictment in this ease is substantially the same as that in The State v. Hayden, 45 Iowa, 11. In that case the defendant was found guilty of breaking and entering the store with intent to commit larceny. In this case the defendants were found guilty of larceny from a store in the night-time.
It was held in that case that the indictment was not bad for duplicity, because it charged but one offense — that of breaking and entering the store in the night-time, with intent to commit larceny — and the allegation that the larceny was actually committed should be regarded as pleading evidence, which might be rejected as surplusage.
That indictments in substantially the same form have been held good, see authorities cited in that case.
l. cjiimiBAL pounti offense: construction of statute. The indictment under our practice must charge but one offense, but it may be charged in different forms or counts to meet the evidence. The exception, is “that in eases of compound offenses, where, in the same .. ,. . transaction, more than one offense has been committed, the indictment may charge the several offenses, and the defendant may be convicted of any offense included therein.” Code, § 4300. There was no printed argument for the prosecution in the case of the State v. Hayden, supra, but in an oral argument by the late Attorney General it was urged that the crime charged was a compound offense.
We then examined that question to some extent, and were satisfied that this position was not correct. It is now again urged that this is a compound offense. Upon a re-examination of the question, we have not changed our views.
It may be somewhat difficult to determine exactly what is a compound offense. It must, yye think, refer to a case where a particular transaction constitutes in itself two or more offenses. Eor example, if a married man should forcibly *373have a carnal knowledge of a woman not his wife, he would, in the same act, commit the crimes of rape and adultery, and if such person should be within the prohibited degrees of consanguinity, he would commit the further crime of incest. In such cases, all the offenses are committed by the same act or transaction at the same point of time, and all may be charged in the same indictment.
But in the case at bar the breaking and entering with the unlawful intent was completely consummated before the larceny was commenced. The larceny was a distinct crime, and no part of the breaking with intent to commit a public offense.
Under section 3894 of the Code, the unlawful breaking and entering must be “with intent to commit any public offense.” Suppose that instead of larceny the defendant had committed the crime of rape or murder, would it be proper to charge those offenses, not only in the same indictment, but in the same count, with the charge for the unlawful breaking and entering with the criminal intent ? An indictment charging burglary and murder would be an anomaly under our practice. We have no doubt that such an indictment would not meet the requirements of our statute, that but one offense must be charged. If such an indictment cannot be sustained, for the same reason burglary, or the unlawful breaking and entering a storehouse, cannot be joined with larceny.
The defendants excepted to the instructions above referred to, and also moved in arrest of judgment.
We think the instructions were erroneous, and that the motion in arrest of judgment should have been sustained.
p_.prao. interrogatories to jury. II. The defendants asked that certain interrogatories be submitted to the jury. The court refused to submit the same, for reason> among others, that the law does not contemplate the submission of special questions of fact to the jury in criminal eases.
In our opinion there was no error in this ruling.
It is not provided that interrogatories may be submitted to *374the jury by the court, upon the request of. the parties, in criminal cases. It is provided in section 4468 that the jury, “when they are in doubt as to the legal effect of the facts proven, may, except upon an indictment for libel, find a special verdict.” The jury themselves are to determine whether their verdict shall be special or general. It can only be special when the jury doubt as to the legal effect of the facts proven. ' Section 2808 of the Code, providing for the submission of particular questions of fact to the jury, has reference to trials in civil actions only.
III. There are a large number of exceptions taken to other instructions of the court to the jury, and to the refusal to give certain instructions asked by defendants.
A careful examination has satisfied us that these objections are not well taken. With the exception of the error above discussed, we think the instructions given by the court contain no prejudicial error, and are fully as favorable to defendants as they had the right to ask.
As the -judgment must be reversed for the error in the tenth instruction above set out, and for overruling the motion in arrest of judgment, it is unnecessary to allude to the other exceptions in detail.
Reversed.