ON MOTION FOR REHEARING.
Russell, J.Upon the original investigation of the record and the briefs in this case, the point raised by the demurrer was maturely considered, and it was the opinion of the court that the demurrer was properly overruled; but, by inadvertence, the point was not dealt with in the decision.
In our opinion, the rulings in Townsend v. State, 92 Ga. 732 (19 S. E. 55), and Brazil v. State, 117 Ga. 32 (43 S. E. 260), have no application whatever to the question presented by the case at bar. In the Brazil case the indictment (which contained two counts, one charging forgery and the other that the accused did “falsely and fraudulently páss, pay and tender in payment” the paper alleged to have been forged by him) was held to be sufficient, and the statement that “our penal laws fail to provide a punishment for uttering a bank check drawn in a fictitious name” is clearly obiter dictum, because that specific point was not before the court for decision. In the Townsend ease Judge Simmons was dealing with an indictment based upon the second division of section 4453 of the Code of 1882 (section 247 of the Penal Code of 1910), and the controlling question before the Supreme Court was whether a check upon a bank is a bill of exchange, within the *333meaning of that section; and the judgment was reversed solely because the court was of the opinion that a cheek is not a bill of exchange, within the purview of our criminal 'statutes. The indictment in the Townsend case charged the defendant with making a bill of exchange in a fictitious name, and set out a cheek upon the Merchants National Bank of Borne. In concluding the opinion (and showing that evidently the case was decided upon that point alone) the court held that, “the paper in question here being an ordinary bank check, it follows that the conviction under section 4453 was improper, and the court below erred in overruling the motion for a new trial.” It is clearly to be seen that the trial court in the case at bar properly held that the indictment was brought under section 349 of the Penal Code of 1910; and, therefore, the question presented to us, instead of being, as in the Townsend, case, whether a check is a bill of exchange, is whether a check can properly be held to be a “writing” under that section.
We are of the opinion that, although criminal statutes are to be strictly construed, the broad generic term “writing” can aptly include the more specific term “check,” and, therefore, that the court did not err in overruling the demurrer. It was properly held in the Townsend case, supra, that in prosecutions under section 4453 of the Code of 1883 (section 347 of the Penal Code of 1910), a distinction exists between the terms “bill of exchange” and “check,” for the reasons pointed out in the opinion. The accused in the ease now before us, however, was not indicted under section 347 of the Penal Code, but is charged under the provisions and in the terms of section 349 ypth obtaining money by means of a false writing made in a fictitious name. It'is true the paper set out is what is ordinarily called a “check;” it may be said to be a check, but it is none the less a “writing,” and section 349 is intended to cover any case of obtaining goods or money on a false writing. Section 347 is directed against the man who draws or makes the papers dealt with, or indorses or accepts them; section 349 denounces the obtaining of goods or money, though the accused may not have written the writing which is used to defraud another. Section 347 refers only to eases in which a fictitious name is used; section 349 punishes one who employs a false or forged writing issued in the name of a real person, as well as him who employs a false writing made in a fictitious name. An essential element in *334the offense penalized by section 249 is the obtaining of goods or money, or both; one may violate section 247 without obtaining anything of value. Motion for rehearing denied.