Concurring and Dissenting Opinion by
Hoffman, J.:While I agree with the Majority that the Commonwealth’s evidence was insufficient to sustain appellant’s conviction under §6106 of the Crimes Code,1 I dissent from that portion of the Majority opinion which affirms appellant’s conviction under §6108,2 because I believe that the Majority has premised its holding on an issue not relevant to the facts of the instant case.
Section 6108 provides: “No person shall carry a firearm ... at any time upon the public streets or upon *97any public streets or upon any public property in a city of the first class unless: (1) such person is licensed to carry a firearm; or (2) such person is exempt from licensing under section 6106 (b) of this title . . ” The Commonwealth presented no evidence on the question of whether appellant was licensed to carry a firearm. It is clear that if the absence of license is an essential element of the crime, the burden is on the Commonwealth to prove this, fact beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970). The Majority, however, states that “[a]t the time of appellant’s trial, December 13,1974, the law in this Commonwealth clearly stated that it was the burden of the defendant to prove that he had a license if, in fact, he did have one. See Commonwealth v. Townsend, 211 Pa. Superior Ct. 135 (1967) ; Commonwealth v. Silia, 194 Pa. Superior Ct. 291 (1960) ; Commonwealth v. Anderson, 191 Pa. Superior Ct. 213 (1959).” I disagree with this statement. In my opinion, the law in this Commonwealth on December 13, 1974, clearly placed the burden of proving the absence of license on the Commonwealth. Thus, I find it unnecessary to discuss whether Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975), is retroactive.
In McNeil, the appellant was convicted of violating 18 P.S. §4628 (e),3 the precursor to the present 18 Pa.C.S. §6106. There, the Court held that “[t]he structure of the statute and the nature of the prohibition convince us that the absence of a license is an essential element of the crime. ... It follows, therefore, that the Commonwealth had the burden of establishing this element beyond a reasonable doubt. ‘The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the *98crime with which he is charged.’ In re Winship, [supra]. ... In Anderson, supra, the Superior Court apparently concluded that the absence of a license is an essential element of the crime. However, that court reasoned that proof of this element would require the Commonwealth to establish the negative of a fact and that therefore the burden of proof on this issue should be placed on the defendant. Whatever the validity of that reasoning at the time Anderson was decided, after In re Winship, supra, it is clear that the burden of proving an essential element of the crime may not be shifted to the defendant.” 461 Pa. at 715, 337 A.2d at 843.
The Majority Opinion fails to consider the fact that McNeil was a case decided under the 1939 Penal Code, while the instant case arose under the 1972 Crimes Code. The distinction is important because the 1939 Code did not define “essential element of a crime,”4 while the new Code defines both “element of an offense” and “material element of an offense.”5 Because the 1939 Code was silent on this point, the Supreme Court in McNeil had to decide whether the absence of license was a material element of the offense. The definitions in the new Crimes Code, however, render the absence of license a material element. Thus, the Majority’s statement that McNeil “shifted the burden” is true only for convictions obtained under the 1939 Penal Code. In my opinion, the definitions found in the 1972 Code “shifted the burden” for cases arising under that statute, two years prior to the decision in McNeil. Thus, the retroactivity of McNeil is at issue only in cases decided under the old Penal Code.
In 18 Pa. C.S. §103, “element of an offense” is defined as “[s]uch conduct or such attendant circumstances or such a result of conduct as: . . . (3) negatives an excuse or justification for such conduct.” (Emphasis added). *99“Material element of an offense” is defined as “[a]n element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with: ... (2) the existence of a justification or excuse for such conduct.” (Emphasis added). In §6108, the existence of a license certainly provides “an excuse or justification” for carrying a firearm on a public street. Under the Crimes Code, a fact which negatives an excuse or justification is an element of the offense. Further, the absence of a license is directly connected with the existence of a justification or excuse, and thus is a material element of the offense as well. Therefore, the law at the time of appellant’s trial provided that the absence of license is a material element of the offense, 18 Pa. C.S. §103, and that the Commonwealth has the burden of proving every element of the crime beyond a reasonable doubt, In re Wins hip, supra. Because there is no evidence concerning the absence of license on the record, the Commonwealth has failed to sustain its burden of proof.
I would reverse both judgments and order appellant discharged.
Spaeth, J., joins in this concurring and dissenting opinion.
. Act of December 6, 1972, P.L. 1482, No. 334, §1, eff. June 6, 1973; 18 Pa. C.S. §6106.
. Act of December 6, 1972, supra; 18 Pa. C.S. §6108.
. Act of June 24, 1939, P.L. 872, §628; May 21, 1943, P.L. 306, §1; May 21, 1943, P.L. 485, §1; July 27, 1953, P.L. 627, §1; August 4, 1961, P.L. 921, §1.
. See Act of June 24, 1939, P.L. 872, §103; 18 P.S. §4103.
. Act of December 6, 1972, supra; 18 Pa. C.S. §103.