The defendant has been found guilty as charged in the indictment of the crimes of rape in the first degree and abduction. Upon conviction, it appearing that he had once before been convicted of a felony, he was sentenced to be imprisoned in the State Prison at Auburn for the term of five years on each separate conviction.
The crimes as charged in the indictment arose in the same transaction. It now appears that the proof on the charge of abduction was in certain technical respects insufficient to sustain the verdict of conviction for that crime; and the assistant district attorney concedes that the essential evidence cannot be obtained.
The female upon whom the rape was committed was an epileptic about twenty years of age who had been committed to Craig Colony, a State institution for epileptics and feeble minded at Sonyea. The indictment charged the perpetration of an act of sexual intercourse with this female, who through idiocy, imbecility and unsoundness of mind was incapable of giving consent. (Penal Law, § 2010.) At the time the crime was committed she had escaped with others from the institution. The evidence, which the jury apparently found to be true, indicated that defendant was a highly depraved person.
*321The question of idiocy was excluded from, the consideration of the jury, and it was left for them to determine as a question of fact whether by reason of mental weakness, deficiency or unsoundness of mind the female was capable of giving consent.
Consent to such an act requires the exercise of intelligence, based upon knowledge of its significance and moral quality. There must be a choice between resistance and assent. The evidence was strong not only that the female was a mental defective as defined by section 2 of the Mental Deficiency Law, but was mentally of the age of but seven 37-ears and two months, as determined by tests recognized by scientists and applied in this State by officials to whom is given charge of such unfortunates. It sufficiently appears, so that the jury were justified in so finding, that this female had no sound mentality, and was not able to appreciate the nature of the act, or to give that consent which the law requires to relieve the perpetrator of the charge of crime.
There were certain errors in the admission of evidence, the most glaring of which was the reading by the assistant district attorney from a scientific work on “ Feeble Mindedness ” and asking a medical witness on his direct examination if he agreed with the statements read. (See Pahl v. Troy City Railway Co., 81 App. Div. 308; Foggett v. Fischer, 23 id. 207.)
The defendant called no witnesses to dispute the mental capacity of the complainant but defended on the ground that he was guiltless of the act. Under the circumstances the errors were harmless and had no effect on defendant’s substantial rights. (Code Crim. Proc. § 542.)
The judgment of conviction for rape and the order denying a new trial should be affirmed. That part of the judgment convicting the defendant of abduction should be reversed and the charge dismissed.
Htjbbs, P. J., Clark, Sears and Taylor, JJ., concur.
Judgment of conviction for rape and order denying defendant’s motion for a new trial affirmed. That part of the judgment convicting the defendant of abduction is reversed and the charge dismissed.