Opinion by

The summons in this case takes the place of an indictment or warrant. It should have been sufficiently specific to give notice to appellee of the particular falsehood or fraud in his list of property fo-r which he was being prosecuted, whether it consisted in false statements as to real or personal property, or as to his taxable estate under the qualification act.

But waiving this defect in the summons, it is sufficient to say that the question of his guilt was submitted to a jury, and he was acquitted upon, the proof.

The court did not err in instructing the jury, that before they could convict they must believe from the evidence to the exclusion of reasonable doubt, that the return made, was wilfully false. Persons are not to be subjected to the penalty prescribed by Section 20, Article 6, Chapter 803, R. Statutes, for mere mistakes. Incorrect lists of taxable property cannot be “false and fraudulent” unless the persons making them are aware that they are incorrect, and intentionally make them so.

In a proceeding to have an assessment corrected the rule would be different, but in a penal prosecution like this, the defendant is not to be required to- establish his innocence.

Judgment affirmed.