Opinion of the- Court by
Judge Carroll —
Affirming.
This penal action was instituted in the name of the Commonwealth against the Standard Oil Company for a violation of section 2209 of the Kentucky Statutes of 1903, providing that: “If any person or persons in this State shall sell, or offer to sell, to he consumed or used in this State for illuminating purposes, any of the oils or fluids specified in section 2202, that will ignite or permanently burn at a temperature less than 130 degrees Fahrenheit, or shall sell or offer for sale, to be consumed in this State for illuminating purposes, any of the oils and fluids aforesaid, which have been condemned by an authorized inspector of this State, and the barrels, casks or packages containing the same been branded or marked by him ‘Unsafe for illuminating purposes,’ the persons so offending shall be guilty of a misdemeanor, and, on conviction, be punished by a fine not exceeding one hundred dollars, and the oils and fluids be forfeited and sold, and the proceeds go to the State.’’ The petition charged, in substance, that the appellee company did offer for sale about 8,000 gallons of *550oil, a product of coal, petroleum, or other bituminous substance for illuminating purposes, which oil might be used for illuminating purposes; that the oil so offered for sale had then and there and previous to the offer for sale been tested, examined, and condemned as unsafe for illuminating purposes, and the cask or tank containing the oil had been marked or branded “Unsafe for illuminating purposes” by a duly appointed and authorized inspector, who found that it would and did ignite and permanently burn at 125 degrees Fahrenheit. The appellee in the first paragraph of its answer traversed all the material averments of the petition. In the second paragraph it set out the following' facts: “Further answering, defendant states that the facts concerning the 8,000 gallons of oil referred to in the petition herein are as follows. Said oil was. shipped and delivered to this defendant at Cadiz, Ky., and was there condemned and marked, ‘Unsafe for illuminating purposes, ’ by John S. Lawrence, an inspector. Thereafter, at the request of the defendant, C. 0. Prowse, an inspector located at Hopkinsville went to Cadiz, and, in conjunction with Lawrence, reinspected and retested said oil, and reported to this defendant that said oil would ignite and permanently burn at a temperature slightly less than 130 degrees Fahrenheit. Thereupon this defendant shipped said oil from Cadiz to Hopkinsville, where it caused said oil to be pumped into a large storage tank owned by this defendant, and containing a large quantity of oil which would not ignite or permanently burn at a less temperature than several degrees above 130 degrees Fahrenheit. After said 8,000 gallons of oil which had been condemned as aforesaid had been pumped into and mixed with this large quantity of oil in this large tank, *551the resultant mixture was inspected and tested by said C. O.- Prowse, án authorized inspector of this State, and said Prowse found and notified this defendant, and it is true, that the oil composing said mixture would not ignite and permanently burn at a temperature less than 130 degrees Fahrenheit. Defendant further says that none of said 8,000 gallons of oil which had been condemned as aforesaid was sold or offered for sale by this defendant before it was pumped into said storage tank, and mixed with the oil contained therein, and became a component part of the resultant mixture.” In a reply, the plaintiff denied that the resultant mixture in the large tank in Hopkinsville would not ignite or permanently burn at less than 130 degrees Fahrenheit, after the said 8,000 gallons of condemned oil was pumped into the said large tank, as alleged in defendant’s answer. Upon the conclusion of the evidence for both parties, the court directed the jury to find the appellee not guilty. No motion or grounds for a new trial was made or entered. "With the record in this condition, the point is made for appellee that we cannot consider the bill of evidence, and that the case must be determined on the sufficiency of the pleadings alone to" support the judgment entered on the verdict. This question of practice under the decisions of this court must be ruled favorably to appellee’s contention. Under section 11 of the Criminal Code of Practice, proceedings in penal actions are regulated by the Code of Practice in civil actions; so that the question must be adjudged as if this were a purely civil action. There is no statute treating particularly of this subject, but this court in more than one decision has held that in civil actions, in the absence of a motion and grounds for a new trial, there is nothing *552before this court except the question whether or not the pleadings are sufficient to support the judgment appealed from. L. & N. R. R. Co. v. Commonwealth, 92 Ky. 114, 13 Ky. Law Rep. 439, 17 S. W. 274; Kistler v. Slaughter, 50 S. W. 529, 20 Ky. Law Rep. 1937. There is an intimation to the contrary in Meachem v. L. & N. R. R. Co., 45 S. W. 363. 20 Ky. Law Rep. 112, but this must be regarded in conflict with the ' better-considered opinions in the other cases. So that it may be regarded as the settled practice that in civil actions, where a verdict is returned in obedience to a peremptory instruction, there must be a motion and grounds, for a new trial, if it is desired to have this court consider errors committed during the progress of the trial, or pass upon the correctness of the ruling of the lower court in taking the case from the jury.
. This leaves to be considered only the question whether or not the pleadings alone supported the judgment. The petition stated a good cause of action for the Commonwealth, and the second paragraph of the answer presented a good affirmative defense. The statute prohibits the selling or offering for sale oil that will ignite or permanently burn at a temperature less than 130 Fahrenheit, or oil that has been branded “Unsafe for illuminating purposes.” But it does not prohibit the owner of oil that has been found to be below the test, or that has been condemned, from mixing it before it is sold or offered for sale with other oil, thereby bringing the entire quantity up to the statutory test. In this particular the appellee company, after the 8,000 gallons of oil had been condemned and branded “Unsafe for illuminating purposes,” had the right to pump the condemned oil into a larger tank in which there was *553other oil, and then sell and offer for sale the resultant mixture, provided the whole of it was up to the legal standard. But, when the appellee company in its answer admitted that it placed the condemned oil in a larger tank with other oil, and, by failing to deny that it sold the resultant mixture admitted that it did so, it assumed the burden' of proving that the oil in the large tank after the condemned oil had been pumped into it was up to the standard required by law, as this averment was denied by the leply. It.is the general rule that in prosecutions, whether by in - dictment or penal actions, the burden of proving the guilt of the accused, and every fact necessary to establish it, is on the Commonwealth; and this practice would be applicable to this case if the appellee had contented itself, as it might have done, with entering a plea of not guilty or standing on the first paragraph of its answer which was in effect a plea of not guilty. Under a plea of not guilty, which in law would , amount to a traverse of every material averment óf the petition, a conviction could not be had unless the appellee was proven to be guilty beyond a réasonable doubt of the offense charged. But it did not content itself with entering a plea of not guilty and resting its case upon this defense. It filed, 'as it had the right to do, an answer setting up an affirmative defense, and, having done so, its defense must be adjudged by the averments of the pleading and the rules of practice applicable to pleadings in civil actions. L. & N. R. R. Co. v. Commonwealth, 112 Ky. 635, 66 S. W. 505, 23 Ky. Law Rep. 1900, 1986.
The answer set up a defense that was more than a traverse of the allegations of the petition and involved new matter entirely separate from and independent of the original transaction, upon which the *554v Commonwealth sought to recover. In the second paragraph the answer admitted that the oil mentioned in the petition was below the standard, and had been condemned as “Unsafe for illuminating purposes,” and that for the purpose of bringing this oil up to the standard it put it in a tank in which there was other oil above the standard, the result being that the whole body of oil was above the legal test, and that, after mixing the oils, it sold the resultant mixture. "This plea, although it denied the sale of any part of the 8,000 gallons Before the mixture, was' in the nature of a plea of confession and avoidance. It put into the case a distinct and‘affirmative defense upon which it rested its right to a verdict of acquittal. Under this defense, it was not necessary that the Commonwealth should prove that the oil mentioned in the petition would ignite or permanently burn at a tern-’ perature less than 130 degrees Fahrenheit, or that it had been branded, “Unsafe for illuminating purposes,” because these two material facts ¡were admitted. Nor was it necessary that the Commonwealth should prove that a part of the condemned oil had been sold or offered for sale, as the answer admitted that it had been after it was mixed with'the other oil. So that there was only left open by tffie pleadings the single question of fact whether or nc¡*t the oil in the large tank after the condemned-oil had, been mixed with it was up to the standard. The' appellee affirmed that it was, and the Commonwealth denied it. Therefore the burden of proving this fact was upon the appellee. If no evidence had been introduced and the case had been submitted on the pleadings alone, judgment should have gone for the Commonwealth. There are exceptions to the general rule that places upon the Commonwealth the burden *555of proof as to every element of the offense necessary to constitute the guilt of the accused. These exceptions are generally recognized, and are well stated in an article on criminal law, by authors of established reputation, in 12 Cye. p. 380, where it is said: “Although the burden of proof is on the prosecution, even as to negative matters, such, as the absence of self-defense, the want of sufficient provocation, and the like, yet by the weight of authority as to distinct and substantial matters of defense consisting of facts either of jurisdiction or excuse, or of exemption from criminal liability, which are wholly disconnected from the body of the particular offense charged, and constitute distinct affirmative matter, 'the burden of proof is on the defendant, unless the fact relied upon otherwise appears in evidence to such an extent as to create a reasonable doubt of guilt. ’ ’ State of Kansas v. Wilson, 62 Kan. 621, 64 Pac. 23, 52 L. R. A. 679; State of Connecticut v. Schweitzer, 57 Conn. 532, 18 Atl. 787, 6 L. R. A. 125. The principle announced in these authorities is uniformily applied in this State in prosecutions against persons for selling liquor without license when the accused rests its defense upon the fact that he had a license. Haskill v. Commonwealth, 3 B. Mon. 342; Orme v. Commonwealth, 55 S. W. 195, 21 Ky. Law Rep. 1412, as well as in other like cases. And is well illustrated by the practice in prosecutions for murder, where' the defendant relies upon the plea of insanity, thereby assuming the burden upon this issue. The defendant may in many statutory misdemeanors, by relying upon a distinct affirmative defense, relieve the Commonwealth of the necessity of proving all the facts necessary to constitute his guilt. This is particularly true in prosecutions by penal actions- where the defendant may set *556up his defense in a written pleading. In the case before us, when the defendant company admitted that the oil was below the statutory test, and placed its defense upon the ground that by mixing it with other oils it cured the quality, the burden of establishing this, the only issuable fact left open, was upon it. As the answer presented a good defense, and the evidence is not in the record, we must presume that the proof offered by defendant in the lower court fully sustained its affirmative defense, and that the action of the trial judge in giving the peremptory instruction was proper. If the answer had not presented a good defense, then it would not support the judgment in favor of appellee, and on the pleadings alone a reversal would follow.
The judgment must be affirmed.