State ex rel. Wise v. Chand

• Decision Date: 25 February 1970
• Docket Number: No. 69-175,69-175
• Citation: 21 Ohio St.2d 113,256 N.E.2d 613,50 O.O.2d 322
• Parties: , 50 O.O.2d 322 The STATE ex rel. WISE, Appellee, v. CHAND, Appellant.
• Court: Ohio Supreme Court

Page 113

21 Ohio St.2d 113

256 N.E.2d 613, 50 O.O.2d 322

The STATE ex rel. WISE, Appellee, v. CHAND, Appellant.

No. 69-175.

Supreme Court of Ohio.

Feb. 25, 1970.

Syllabus by the Court

1. Prosecutions of complaints under Sections 3111.01 to 3111.24, inclusive, Revised Code, relating to bastardy, are, unless specified otherwise therein, governed by the procedure provided for the trial of civil cases. (Paragraph one of the syllabus of Taylor v. Scott, 168 Ohio St. 391, 155 N.E.2d 884, followed.)

2. The complainant in a bastardy action may, pursuant to the provisions of Section 2317.07, Revised Code, call the defendant as if under cross-examination.

3. In a trial before a jury, the court's participation by questioning or comment must be scrupulously limited, lest the court, consciously or unconsciously, indicate to the jury its opinion on the evidence or on the credibility of a witness.

4. In a jury trial, where the intensity, tenor, range and persistence of the court's interrogation of a witness can reasonably indicate to the jury the court's opinion as to the credibility of the witness or the weight to be given to his testimony, the interrogation is prejudicially erroneous.

These proceedings were instituted in the Juvenile Court of Summit County by the filing of a complaint charging defendant with being the father of complainant's bastard child. After trial, the jury found the defendant guilty of being the father of that child.

Upon appeal, the judgment of the Court of Appeals affirmed the order of the Juvenile Court entered in accordance with that verdict.

The cause is now before this court upon appeal from that judgment of the Court of Appeals, both as an appeal involving a constitutional question and pursuant to the allowance of a motion to certify the record.

Monte E. Mack, Akron, for appellee.

Buckingham, Doolittle & Burroughs and Charles F. Scanlon, Akron, for appellant.

CORRIGAN, Judge.

As part of her case, complainant called defendant as if under cross-examination. Defendant being an adverse party, complainant's calling of defendant was proper if the proceeding was a civil action. Section 2317.07, Revised Code. (This section, a portion of the Code of Civil Procedure, provides that 'at the instance of the adverse party, a party may be examined as if under cross-examination * * *.')

In our unanimous decision in Taylor v. Scott, 168 Ohio St. 391, 155 N.E.2d 884, the question whether the Code of Civil Procedure is applicable to bastardy proceedings was settled. Paragraph one of the syllabus in that case reads:

'Prosecutions of complaints under Sections 3111.01 to 3111.24, inclusive, Revised Code, relating to bastardy, are, unless specified otherwise therein, governed by the procedure provided for the trial of civil cases * * *.'

No contention is made that anything in the Revised Code sections relating to bastardy specifies that the procedure provided for the trial of civil cases by Section 2317.07, Revised Code, should not apply in prosecutions of complaints relating to bastardy.

Hence, we conclude that the complainant in a bastardy action may, pursuant to the provisions of Section 2317.07, Revised Code, call the defendant as if under cross-examination.

Defendant's Proposition of Law No. 2 is presented as follows:

It is an abuse of the trial judge's discretion to cross-examine an expert witness called by the accused in a bastardy proceeding where the effect, tone, and scope of such examination indicate to the jury the trial judge's opinion as to the weight that should be given the expert's testimony.

In his brief, defendant states that this witness, an expert in genetics, was offered for the purpose of showing 'the probable coloring (skin and eyes)' that a child of complainant and defendant would have. The record discloses that the baby in the instant case had a sallow skin and blue eyes. As the interrogation indicates, the purpose of offering this witness was to provide evidence that a child of the defendant would probably not have blue eyes.

The witness was qualified as an expert in genetics, with a Ph.D. degree in that general field.

After some preliminary questions about genetics were asked on direct examination of this expert witness, he was asked and answered, without objection being taken, the following hypothetical question:

'Q. Now, Doctor, assume for example that you had a father who is of Indian descent, who both his mother and father were from India and his entire family tree is from the country of India. Assume further that the father is of dark skin, brown eyes and black or dark brown hair, and that his brothers are also dark brown skin, dark brown hair and dark brown eyes.

'Assume further that this alleged father has intercourse with a woman of white skin, black hair and hazel eyes, and assume further that her mother is white skin, dark hair, dark brown hair and hazel eyes, and that the father of this alleged mother or assumed mother has dark brown hair and hazel eyes, or nonblue eyes.

'Assume further, Doctor, that this alleged mother has one brother who has reddish-brown hair, nonblue eyes; could you as an expert in the field of genetics determine with any degree of probability the genetic mechanism as to the offspring of such sexual intercourse?

'A. I think in this instance you are 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; you would assume this is reasonably pure sort of situation and accordingly, according to the principles of genetics, if a person such as that had a child by a person considerably lighter pigmentation, you would expect that the child would be something in between that of the father's and mother's in pigmentation as far as the skin is concerned.

'The hair is probably somewhat less definitive in this regard. 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.'

These questions and answers then followed on direct:

'Q. Would this also be true if the mother was nonbrown eyed? Would there be a dominance of one color over the other?

'A. Yes, under ordinary circumstances one would expect this to be the case.

'Q. How is this? How is your answer derived? What are the natures of probability in the field of genetics?

'A. Well, it is a little difficult to answer the question without going into genetic theory and theory of probability perhaps, but if there is a pure, genetically pure brown eyed individual without any complicating factors involved, his children will be brown eyed.

'Q. Regardless of what-

'A. Regardless of what the other parent's eye color would be, yes.'

At this point in the trial several questions were asked on cross-examination which did not tend in any manner to change the expert's opinion that 'we would anticipate that the children of such a mating would be brown eyed.' And this was regardless of what the other parent's eye color would be. Counsel for the complainant then stated that he had no further questions.

Whereupon the court took up the interrogation of the witness with these questions and answers:

'The Court: I have a question. Assuming the facts that have already been given to you, and observing the second man at the trial table and observing the woman seated across from him, would you be able to formulate an opinion based upon reasonable probabilities if you saw the child to which she gave birth on March 28, 1967, as to whether or not the defendant would be the father of that child?

'The Witness: Well, under those circumstances, your Honor, I would say the child should be some place in between the two individuals with reference to pigmentation.

'The Court: You have said that.

'The Witness: Yes, and I would say that the eye pigmentation, for example, would in high probability be brown in view of the fact that both (sic) of them are brown.

'The Court: My question was-

'The Witness: And then if there were other points that one wished to examine such as the shape of ear lobes, 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.

'The Court: Well then if I understand your answer, if this child were brought into this court room you could not form an opinion based upon seeing the child and examining that child and having seen both these people in the court room and the other facts that counsel asked you to assume; you could not say with reasonable probability that the individual was or was not the father of that child. Is that what you are saying?

'Mr. Glick: I object.

'The Court: Overruled.

'Mr. Glick: Sorry to the court. I think you are baiting (sic) the issue.

'The Court: I am not evading the issue. He has testified to certain opinions with reference to similarities. I am just asking him a specific. Does he have an opinion or could he give an opinion based upon reasonable probabilities as to whether or not a given male was or was not the father of the child?

'The Witness: I think if you have a situation where you know a given female is the mother of the child-

'The Court: Assume this woman is the mother of the child.

'The Witness: Yes. I think there are certain judgments one could make to exclude certain children, yes.

'The Court: In other words, matter of exclusion only.

'The Witness: Yes, I think that would probably be a justified statement.'

At this point, counsel for the defendant pursued some redirect examination of the expert witness, followed by one question on recross-examination, and then the court continued its inquiry of the witness in a series of a...