delivered the opinion of the court.

The appellees were indicted under Code 1906, § 1044, which is in the following words:

“1044 (968). The Same; With Gowhicle, Whip> etc. — If any person assault and beat another with a cowhide, whip, or •stick, having at the time in his possession a pistol, or other •deadly weapon, with intent to intimidate the person assaulted, •and prevent him from defending himself, he shall, on conviction, be imprisoned in the penitentiary not longer than ten years.”

The indictment, in the first count, omitting the formal part, is as follows:

“That Jeff Spigener, S. J. Spigener, Walter Denham, and Bud Holland, late of the county aforesaid, on the 8th day of March, A. D. 1909, with force and arms, in the county aforesaid, and'within the jurisdiction of this court, being then and there armed with a deadly weapon, a pistol, did then and there wilfully and feloniously assault and beat John Ooekran with leather bridle reins, with the intent of them, the said Jeff Spigener, S. J. Spigener, Walter Denham, and Bud Holland, then and there wilfully and feloniously to intimidate the said John Ooekran and prevent him-from defending himself, against the peace,” etc.

It will be observed that the statute provides, “If any person ■shall assault and beat another with a cowhide, whip, or stick,” etc.; and it will be further observed that the indictment does not charge the beating to have been with any one of these things, *602but with “leather bridle reins.” There was a demurrer interposed to this indictment on the grbund that it charged no offense-under this statute, and no- offense at all, and the demurrer was-sustained, and the state appealed; the defendants being discharged.

It will be observed that this statute does not provide, as some-statutes of this sort do, that the assault' shall be with cowhide, whip, stick, or- other like thing. We find in the case of State v. Taylor, 50 Or. 449, 93 Pac. 252, an opinion which presents the precise point for decision here involved. The statute there provided, “If any person shall assault another with cowhide, whip, stick, or like thing,” etc., and the indictment, charged that the assault and beating were with a “leather strap-,”' and upon the indictment the court said: ■ *603a pistol with intent to intimidate, an indictment that charged an assault with a rope, stick, or whip was held sufficient to-sustain a conviction for assault, but insufficient if the conviction had been for the offense charged. Higginbotham v. State, 50 Ala. 133. Where the instrument used is not one of those-named in the statute, then it must be so described as to bring it within the class named. Where a statute, in defining a crime committed by use of weapons, mentions certain weapons ‘or other deadly weapon,’ it is held that those named in the statute-need not be described as deadly weapons; but if another than those named in the statute is relied upon as coming within the term ‘other deadly weapon,’ it must be so averred as to bring it within that designation. State v. Sebastian, 81 Mo. 514; State v. Hoffman, 78 Mo. 256; State v. Painter, 67 Mo. 84; State v. Porter, 101 N. C. 713, 7 S. E. 902. The language of this statute is ‘with a cowhide, whip, stick, or like thing.’ If the instrument used was one mentioned in the statute, the description of it need only disclose that fact; but if, as in this case, it is some other instrument relied upon as coming within the term ‘or like thing,’ then it must be so set forth as to disclose that it is a like thing to a cowhide, whip, or stick, and it is not sufficient to refer to it as a leather strap. Therefore the information is insufficient to charge the crime defined by section 1766, B. & O. Comp., but it is sufficient to charge the crime of assault and battery.”

*602“The sufficiency of the indictment is also- questioned by the defendants, in that it does not charge the crime for which they were tried. In the statute of 1864 the name of this crime-is given in the index to the sections at the beginning of chapter 43, of which it is a part, and also on the margin opposite section 527, its original number, as 'assault, being armed with a cowhide,’ and was so- adopted by the legislature, and the name-of the crime thus became part of the law (State v. Vowels, 4 Or. 324; State v. Nease, 46 Or. 433, 80 Pac. 897), and 'assault, being armed with a strap,’ does not name the crime defined by this section. However, an error in the name of the crime in the preliminary part of the information is not fatal, if the charging part is sufficiently specific. State v. Sweet, 2 Or. 127; State v. Jarvis, 18 Or. 360, 23 Pac. 251. But the-charge is, 'did assault, strike, hit, and beat one Exilda Mitchell * * * with said leather strap.’ The- allegation contains nothing to-bring the strap within the class of instruments mentioned under 'cowhide, whip, stick, or like thing.’ In Alabama, under a-similar statute [B-ev. Code 1867, § 3672], providing that an assault with a cowhide, stick, or whip, having in his possession

*603It will be observed that the Oregon court held the indictment good for assault and battery, as the Alabama court did in the case of Higginbotham v. State, 50 Ala. 133. We think it is clear that under our statute, under the strict rules always applied in criminal pleading, especially where a felony is charged, this defendant could not be convicted under this precise statute; the indictment charging that the assault was with “leather bridle reins,” and not charging that it was with a cowhide, whip, or stick. In the absence of a charge in the indictment that the *604assault and battery was with a whip, or cowhide, or stick, the thing specially named in the statute, it is not possible, within the strictness required by the rules of criminal pleading, .to uphold this indictment as a good one for the precise offense denounced by the statute; but we think it is- clear, as held in the Oregon case and Alabama case, that this is a good indictment for common assault and battery.

It follows that the judgment sustaining the demurrer is reversed, the demurrer is overruled, the case remanded, and the ■defendants will be held to answer for assault and battery simply.

Reversed.