New Britain herald., 1926-03-17
MUST STAND TRIAL AS GAMBLING CROOK Demurrer Filed by Alex SWier-
 Czynski's Lawyer OYerruled
 HEARING NEXT MONDAY
Judge Hungcrford Declares State Has Produced Sufficient Grounds --Kalleu, Loser of $500, Unable To Attend Court Today.


 To Attend Court Today.
 Deciding that there was sufficient grounds for trial in the case of Alex avenue, Plantsville, charged with obtaining money under false pre- lenses, gaming, and conspiracy. Judge William C. Hungerford, over ruled the motion for a demurrer on the third count, but sustained Attor- ney T. F. McDonough's contentious on the first count, in police court this morning Swierczynski's case will be heard Monday morning and he is under bonds of $l,500.
 Swierczynski is charged with de- trauding $500 from Alfred Kallen of 27l Franklin street Hartford, in game of stud poker at 326 High street, on the afternoon of February 23. Swierczynski's brother. John of 326 High street and Leo Felusk ow- ski of Hartford are also charged with implication In the card game, but they have skipped bonds of $500 each in the New Britain and Hart ford courts where they were charg- cd on the same counts.
 Judges Memorandum
 Judge Hungerford's memorandum on the demurrer follows:
 "The information in the above case is In three counts. The first all | leges obtaining money by false pre- tense: the second alleges gaming, and the third alleges conspiracy. De- fendant demurs to the first and third counts and pleads not guilty to the second.
 "The first count is Insufficient since the false representation is not set out with sufficient particularity. It has been held in 27 Conn, 320, that the particular kind of false pre- tence must be alleged. The only l false prctence in the paragraph un- der consideration is the following: that the defendants induced Alfred 1 kallen to be a participant in an 1 alleged game, which is called stud | IDDktI, lllul l!lf'A hbDltI ltdtll Illll lb win an enormous sum of money nt 1 the said card game The court is of the opinion that this was not the kind of misrepresentation within the contemplation of the statute: further the first paragraph does not allcgc that the defendants failed 10 teach the said Alfred Kallcn how to win large sums at stud poker. There is nothing 10 show that Kallcn was ig- norant of the card game in question nor that the game was not played as fairly as such games are rlaycd.
 "As 10 the third count. it is th@ opinion of the court that the dcmur- Ter should be overruled and that said third count, while containing cer tain supertuous allegations, nev- erthelcss contains sufficient allega- tions to state the crime of conspiracy to cheat and defraud. The defend ant cites State vs. Cannon, et al,. 76 Conn, 206. In this case the first count of the information states sub stantially the same cause of action as stated by the count now under consideration. The gist of the count TOW under consideration may be fairly said to he the following: the defendants conSpired to represent 10 the said Alfred Kallen that they would play with him game Of stud poker, where as this representation was false and no real game of stud
 Jn \ |
 fred kallen by means of q conspiracy was cheated out of thirteen hundred dollars. Under this count the state must prove either that no game Of stud poker vas played or that q
 game ot poker was played with marked cards, or stacked cards, or other devices of trickery.
 "Defendant makes the statement that false representation must be of a present fact. Nevertheless, the intention of the defendants to do or not 10 do q certain thing is present
 fact. and this intention may be mis- represented. In state V. Rowley. 2 Conn.,, 10c, the court cites with ap-
 proval the English case Of Young against the King, in which the Eng ,lish court states that 1t is no objeC-
 ton 10 q prosecution for false repCe- sentations that the offense consisted Of a representation as to some trans action 10 take place at future time, Demurrer as 10 the first count is sustained; demurrer as to the third roup+ js oyprrulCd" -"
 Owing 10 the fact that Kallcn was i'll the trial was not heard this morn- ling. but was continued until Mon day. Swierczynski appeared pale and worried this morning, and Attor- } ney McDonough stated that his client was i'll and may not be able to ap, , pear Monday. In that event, Judge Hungcrford instructed McDonugh tC produce a certificate from his clients physician. Swierczynskfs wife was r not present but Mrs. John Swierczyn. ] ski, his sistcr-in-law, sat beside him rotz ns.oo =. D,,,sr