dissenting. The hypothetical question first asked of the expert witness and quoted in the majority opinion assumed several facts which are not supported by or are contrary to evidence in the record. Some of these facts are enumerated below, with statements in parenthesis as to their status relative to evidence in the record:
1. Alleged father of Indian descent (no evidence in record).
*1212. His mother and father from India (no evidence in record).
3. Alleged father’s “entire family tree is from the country of India” (no evidence in record).
4. Brothers of alleged father of “dark brown skin, dark brown hair and dark brown eyes” (no evidence in the record).
5. Mother’s father had “hazel * * * or nonblue eyes” (“They are hazel more — well, when he wears his blue shirt they look rather bine; when he wears a dark shirt, they look dark brown”).
6. Mother has one brother who has nonbine eyes. (Only evidence was mother’s mother’s testimony: “My son has bine eyes and he has bine eyed grandfathers”.)
In answering this hypothetical question, the expert witness further qualified his answer by adding to the hypothesis that the questioner was “talking about a person who is probably established as being reasonably pure with reference to genetic inheritance, that is, the fact that a person has within his family, all immediate and known relatives, reasonably dark.” There is no evidence in the record to support this addition to the hypothesis.
In his answer, the witness stated that “as far as the eye pigmentation is concerned, if all of the known relatives of the father, that is, this hypothetical father, were brown eyed and he is of course also, we would anticipate that the children of such a mating would be brown-eyed.” There is no evidence in the record as to the eye color of any relative of the defendant.
In the course of his direct evidence, as indicated in the majority opinion, this witness further testified that “if there is a pure, genetically pure brown eyed individual without any complicating factors involved, his children will be brown eyed.” There is no evidence in the record as to whether the defendant was a “genetically pure brown eyed individual.”
Actually, the direct testimony of this witness was essentially based upon an assumption as to the genetical purity of the defendant, Since there was no evidence in *122the record as to any such genetical purity, this testimony had no evidential value.
The very brief cross-examination and reeross-exami-nation of this witness did nothing to raise any doubts as to the weight or relevance of his testimony.
For this reason, it is not surprising that the court asked whether the witness could, “assuming the facts * * * given to” him, and “observing” the defendant and the relator “be able to formulate an opinion based upon reasonable probabilities if * * * [the witness] saw the child * * * as to whether or not the defendant would be the father of that child.”
The witness stated that such a “child should be someplace in between the two individuals with reference to pigmentation” of skin and that the eyes “would in high probability be brown in view of the fact that both * * * [parents’ eyes] are brown.” Then the witness volunteered the statement that “if there were other points that one wished to examine such as the shape of earlobes, various things, one might further formulate a judgment on that basis, so that really perhaps I can say that one can never establish paternity or maternity for that matter on the basis of purely looking. One must admit that.”
Thereafter, the court asked the question quoted in the majority opinion that was the only question of the court which was objected to.
On subsequent redirect examination, the witness, when asked whether “the fact that the mother has brown eyes and father has brown eyes exclude a child that has blue eyes,” answered that “it would exclude a father with brown eyes, assuming that this father is from a pure stock of brown eyed persons.” There is no evidence in the record that the defendant was from such a pure stock.
Notwithstanding this lack of any such evidence, defendant’s counsel then stated to the witness that, in Ms “hypothetical question” he had given “you the assumption that his stock was pure, of Indian, the country of India,” and the witness answered “that is correct.”
After the last questions quoted in the majority opiniqn, *123the witness, on redirect examination, testified that if a dormant bine eye would appear in a child of the father he “would suspect it should be present in other members of” his “family” such as his brothers or sisters or his parents. There is no evidence in the record as to the color of the eyes of the defendant’s parents or of any brother or sister of the defendant.
In his examination of this witness, the trial court was not only patient and fair in his questioning of the witness but was also courteous to and considerate of the witness; the court did not attempt to exhibit a severe attitude toward or to intimidate the witness; and the court did not interrupt either counsel in his examination of the witness.
As stated in the concurring opinion by Lamneck, J., in State v. Lawrence (1954), 162 Ohio St. 412, 417, 123 N. E. 2d 271:
“* * * A judge is to be commended for any determination displayed by him * * * to secure the truth.”
Also, it is stated in the opinion by Marshall, C. J., in C. A. King & Co. v. Horton (1927), 116 Ohio St. 205, 211, 156 N. E. 124:
“ # * * Counsel in this case, in urging that the court erred in propounding to witnesses questions which were designed to develop the true character of the transaction, and in charging the jury as to the law upon the facts thus developed, have a mistaken notion as to the true function to be discharged by the judge in presiding over a jury trial. The judge is not a mere sergeant at arms to preserve order in the courtroom. His chief function is to prevent injustice being done between the parties, and, as a corrollary thereto, to see that justice is actually administered. * * *”
Paragraph one of the syllabus of that case specifically recognizes that there may be a “duty of the presiding judge to further examine witnesses and develop the facts.”
As indicated by what we have said in describing the opinion testimony of this witness, it should have been excluded if objected to, and should have been stricken if a motion had been made to strike it. If allowed to remain *124in the record, the court on its own motion should have instructed the jury in the general charge to disregard such opinion evidence because based upon assumed facts as to which there was no evidence, instead of instructing the jury, as it did, that “if any assumed fact was not established by a preponderance of the evidence” the jury should “determine the effect of that failure upon the value of the opinion.”
As stated by Zimmerman, J., in State v. Holt (1969), 17 Ohio St. 2d 81, 86, 246 N. E. 2d 365, with reference to the opinion of an expert witness which should have been excluded:
“Because of the witness’s educational background and his apparent prestige, his testimony undoubtedly made an impression on the jury and was accorded greater weight than it was entitled to. * *
Since the opinion evidence of this witness should have been given no weight, we do not believe that there is any validity to defendant’s complaint that the cross-examination of the witness by the court had the effect of creating a doubt in the minds of the jury as to whether the witness was expressing any opinion at all and whether his opinion testimony had any value.
Likewise, since defendant had offered testimony of an expert witness which should all have been excluded, we do not believe that there is any validity to defendant’s complaint that the court’s examination of the witness suggested to the jury that the accused should have asked this expert -witness to examine the child and that defendant did not because the expert witness’ opinion might have been unfavorable. Actually, this expert witness of the defendant volunteered a statement suggesting that an examination of the child might be helpful before the court’s questioning, which led to the witness’ testimony that such an examination might enable him to give an opinion excluding someone as the father.
O’Neill, J., concurs in the foregoing dissenting opinion.