Concurring Opinion by
Mr. Chief Justice Jones:I agree that a departure from precedent is in order to comport the law pertaining to intoxication with that of alibi1 and therefore join in granting a new trial. I cannot agree, however, with the broad pronouncements of the plurality and concurring opinions on the burden of proof required with reference to affirmative defenses.
In a criminal prosecution, the Commonwealth has the burden of proving every essential element of a crime necessary for conviction. These elements include the occurrence of a specific type of injury charged, the requisite mens rea, and the accused’s agency as per*391petrator of the crime. The basis for the never shifting burden upon the Commonwealth to prove guilt beyond a reasonable doubt is the presumption of innocence. Therefore, when a defense is raised which, if believed, would have the effect of negativing an element of the crime charged, “it cannot logically be said that the Commonwealth has the burden to prove the presence of such element while the defendant, at the same time, has the burden of proving its absence.” See Commonwealth v. Bonomo, 396 Pa. at 230, 151 A.2d at 446. In the present case the Commonwealth sought a first-degree murder conviction. It was therefore incumbent upon it, in the context of this case, to prove beyond a reasonable doubt the appellant’s specific intent to take life. For that reason, there can be no burden on the appellant to traverse that element by proving intoxication by a preponderance of the evidence, and a charge to that effect is error.2
The concurring opinion of Mr. Justice Roberts goes even further. The result of our decision in Bonomo was to relieve the defendant from any burden of proving the defense of alibi, but we did not then, as Justice Roberts would today, place upon the Commonwealth the duty to disprove beyond a reasonable doubt the theory of defense. This additional burden is unnecessary to protect the rights of a defendant or to insure proof of guilt beyond a reasonable doubt. A jury *392charge substantially as follows would adequately safeguard a defendant’s rights, accurately reflect the applicable law, and not tend to confuse the jury: “The Commonwealth has the burden of proving the defendant guilty of murder in the first degree by proving beyond a reasonable doubt every essential element of that crime, including a willful, deliberate and premeditated design to kill. If this defendant was drunk to the extent that he could not form a willful, deliberate and premeditated design to kill, or if he was incapable of judging his acts or their consequences, you would not be warranted in finding him guilty of murder in the first degree. You must consider the evidence of drunkenness of the defendant in determining whether or not the Commonwealth has met its burden of proof. The evidence of drunkenness, either standing alone or with all other evidence, may be sufficient in your minds to create a reasonable doubt, which might not have existed without the evidence of drunkenness.”3
Since the basis for establishing a new evidentiary rule is that here, as in Bonomo, it is illogical to impose contradictory burdens of proof, an examination of the burden of proof required with reference to Pennsylvania’s other “affirmative defenses” is warranted to clarify this area of the law. The two areas in which this Court has now departed from the traditional requirement that the defendant prove a so-called affirmative defense by a preponderance of the evidence are with respect to alibi and intoxication. Both of these defenses are directed towards negativing an element of the crime which it is the Commonwealth’s duty to prove, rather than claiming justification or excuse, and are not truly affirmative defenses.4
*393In Commonwealth v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970), this Court distinguished alibi from what is classified as “true affirmative defenses.” Although the majority in Winebrenner unfortunately included intoxication among the class of affirmative defenses, 439 Pa. at 84 n. *, 265 A.2d at 114 n. 7, the rationale of that case was well-taken.5 Among those recognized by Pennsylvania as affirmative defenses to various crimes are coercion, entrapment, insanity, and justification.6 These are defenses not because if believed they prevent the Commonwealth from meeting its burden of proof, but because public policy dictates that these are situations which the penal laws were not designed to proscribe or punish. The policy behind these defenses cannot be doubted. To afford the benefits of this policy to one who has otherwise been proven guilty beyond ai reasonable doubt, however, it is not unreasonable nor unfair to require a defendant to prove by the weight of the evidence that he is so entitled.
*394Both Mr. Justice Roberts and Mr. Justice Pomeroy suggest that we view “element of an offense” to include such conduct as “negatives an excuse or justification for such conduct” in accordance with Section 1.13 (9) (c) of the Model Penal Code. This has never been the law of Pennsylvania either at common law or by statute. In addition, our new Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S. §101 et seq., which was fashioned after the Model Penal Code, did not incorporate this provision.7 Due process does not require that the Commonwealth disprove affirmative defenses beyond a reasonable doubt and, if such is to be the law of Pennsylvania, it must come through legislation and not through judicial fiat.
In Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959), this Court rejected the contention of the defendant that it was error not to charge the jury with reference to the existence of any burden upon the defendant to prove the defense of alibi.
The trial court did properly charge the jury that even if they were not satisfied as to appellant’s intoxication by the weight of the evidence, the evidence of intoxication alone, or in conjunction with the rest of the evidence, may be sufficient to raise a reasonable doubt. We cannot say, however, that the jury did not rely on the erroneous instruction, see Commonwealth v. Divomte, 262 Pa. 504, 105 A. 821 (1919), or that the charge did not so confuse the jury as to violate the appellant’s rights. See the late Mr. Chief Justice Bell’s concurring opinion in Commonwealth v. Bonomo, 396 Pa. 222, 232, 151 A.2d 441, 447 (1959). See also Commonwealth v. Barnak, 357 Pa. 391, 54 A2d 865 (1947).
This is essentially appellant’s second point for charge which was given by the trial court
In an affirmative defense the defendant does not claim that he did not or could not have committed the crime charged, but that *393its commission was justified or should be excused. See Commonwealth v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970). See also Crimes Code of December 6, 1972, P. L. 1482, No. 334, 18 Pa.C.S. §308; “Intoxication or drugged conditions are not, as such, defenses to a criminal charge; but in any prosecution for any offense, evidence of intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to negative an element of the offense.” (Although this section did not become effective until .Time 6, 1973, it reflects a legislative policy similar to that advocated judicially herein.)
In Winebrenner, this Court unanimously held that self-defense was an affirmative defense which the defendant had a burden of proving by a fair preponderance of the evidence. Today’s plurality opinion, however, appears to overrule sub silentio our holding in Winebrenner.
Consent is a defense in the nature of alibi and intoxication since it negatives an element of those crimes to which it is a defense.
Contrariwise, the Crimes Code specifically provides that in the case of entrapment the defendant has the burden of proving this defense by a preponderance of the evidence. 18 Pa.C.S. §313 (b).