
64 Mich. App. 386 (1975)
236 N.W.2d 703
PEOPLE
v.
CHAMBERS # 2
Docket No. 18586.
Michigan Court of Appeals.
Decided September 22, 1975.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Thomas M. Khalil, Assistant Prosecuting Attorney, for the people.
Roger L. Wotila, Assistant State Appellate Defender, for defendant.
Before: DANHOF, P.J., and R.B. BURNS and R.M. MAHER, JJ.
DANHOF, P.J.
Defendant Robert Allen Chambers was convicted by a jury on May 9, 1973 of armed robbery. MCLA 750.529; MSA 28.797. On August 24, 1973, he was sentenced to serve 20 to 40 years in prison. The defendant appeals of right. We reverse and remand for trial.
The record indicates that the defendant entered Maury's Bar in Allen Park, Michigan shortly after 2 a.m. on December 8, 1972. He ordered and drank some beer. The defendant left, but came back with a single shot shotgun. He took money from cash drawers located in the office and placed it in his pockets. The defendant then discharged the shotgun. Thereafter, an employee of the bar jumped *388 the defendant and struggled with him until the police arrived.
At trial, the defendant relied upon intoxication as his defense.
As to the intoxication defense, the trial court initially instructed the jury as follows:
"On the question of specific intent, Ladies and Gentlemen of the Jury, since I have already charged that robbery is a specific intent crime, I charge you that if you find that the defendant's mental faculties were so far overcome by intoxication that he was not conscious of what he was doing or he did not know what he was doing and he could not entertain the requisite specific intent, he therefore could not be guilty of robbery. It is for you the jury to determine exactly how far if any the mental faculties of the accused were impaired. If he was conscious of what he was doing is for you, the jury, to determine."
However, during deliberation, the jury requested the trial court to again define the charges. The additional instructions read as to intoxication:
"The defendant's defense is that he was so intoxicated that he could not form the specific intent to rob."
No objection to these instructions was made to the lower court by the defendant.
The first issue raised on appeal is whether the trial court committed reversible error by improperly instructing the jury on intoxication under the capacity standard rather than the COOLEY standard. As this issue is dispositive of the case on appeal, this Court will not address itself to the other issues raised.
The Supreme Court in People v Crittle, 390 Mich 367, 373; 212 NW2d 196 (1973), stated the applicable test to determine whether the accused *389 has the specific requisite intent by quoting from Justice COOLEY'S opinion in People v Walker, 38 Mich 156, 158 (1878):
"`While it is true that drunkenness cannot excuse a crime, it is equally true that when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist * * * if the defendant, for any reason whatever, indulged no such intent, the crime cannot have been committed.'"
The Court went on to distinguish between the COOLEY test and the capacity test (373-374):
"We come now to the consideration of some of the confusing rules re jury instruction on the effect of drunkenness in specific intent crimes. These rules are expressed in such language as:
"`[T]oo drunk to be capable of forming the statutory intent' (People v Haley, 48 Mich 495, 497; 12 NW 671 [1882]);
"So intoxicated that they `did not know what they were doing' (People v Hearn, 354 Mich 568, 470 [sic]; 93 NW2d 302 [1958]);
"`So intoxicated * * * that he would be incapable of forming an intent * * * and did not know what he was doing' (People v Stram, 40 Mich App 249, 252; 198 NW2d 753 [1972]); or
"`[S]o far overcome by the intoxication, that he was not conscious of what he was doing, or if he did know what he was doing, but did not know why he was doing it' (Roberts v People, 19 Mich 401 [1870]).
"These various rules all have one thing in common. They refer to a capacity standard. Their test is not Justice COOLEY'S  `[T]he crime cannot have been committed when the intent did not exist.' Their test is rather `the crime cannot have been committed when the intent could not exist'. It is obviously a different standard and not to be followed.
"As a consequence, trial judges would do well to follow Justice COOLEY'S language and posit their instructions *390 in terms of whether in the light of defendant's intoxication he in fact had the required specific felonious intent."
The trial court in the instant case instructed the jury on intoxication under the capacity test. However, whether this is reversible error under Crittle depends upon whether Crittle is to be given prospective or retroactive effect.
We are not unaware of the recent decision of People v Parsons, 59 Mich App 79; 228 NW2d 852 (1975). In Parsons, the Court determined that Crittle was not intended to apply retroactively to a defendant who was convicted before the decisional date in Crittle. With this determination, we respectfully disagree.
Three traditional factors to determine whether a law should be applied retroactively or prospectively are: (1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice. People v Hampton, 384 Mich 669, 674; 187 NW2d 404 (1971), and Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965). Additionally, Linkletter v Walker, 381 US 618, 621-622, discusses recognized cutoff points for the application of a new ruling:
"Initially we must consider the term `retrospective' for the purposes of our opinion. A ruling which is purely prospective does not apply even to the parties before the court. * * * However, we are not here concerned with pure prospectivity since we applied the rule announced in Mapp to reverse Miss Mapp's conviction. That decision has also been applied to cases still pending on direct review at the time it was rendered. Therefore, in this case, we are concerned only with whether the exclusionary principle enunciated in Mapp applies to state court convictions which had become final before rendition of our opinion." *391 The Linkletter court defines final in footnote 5, supra at 622:
"By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in Mapp v Ohio [367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961)]."
Even though it was a nonjury case, People v Taskila, 391 Mich 815 (1974), remanded the case to the circuit court for reconsideration in light of Crittle. Taskila was on appeal at the time Crittle was decided. See People v Taskila, 50 Mich App 746; 213 NW2d 760 (1973). Further, the recent case of People v Watson, 59 Mich App 299; 229 NW2d 424 (1975), applied the Crittle ruling to that case, even though the defendant had been convicted prior to the decisional date in Crittle. However, the conviction in Watson had not become final.
The first of the three factors enunciated in People v Hampton, supra, is particularly strong in the instant case. The purpose of the ruling in Crittle is to point out the correct instruction on intoxication in relation to a requisite element of the crime, specific intent, without which there is no crime. This instruction has a direct impact on the guilt or innocence of the defendant. However, as was pointed out in Crittle, there has been general reliance by the trial courts of this state on the capacity standard for over 100 years. Finally, the effect on the administration of justice must be considered. To make Crittle retroactive to cases already finalized "would tax the administration of justice to the utmost". Linkletter v Walker, supra, at 637. Therefore, in consideration of these factors, the application of Crittle should not be purely *392 retroactive nor purely prospective, but rather retroactive to those cases not yet finalized.
The defendant in the instant case was convicted on May 9, 1973. He now appeals of right to this Court. The decisional date of Crittle was November 21, 1973. The conviction of the defendant had not yet become final. Therefore, the defendant is entitled to the benefit of the Crittle ruling.
In line with People v Crittle, supra, and People v Watson, supra, we hold that the trial court committed reversible error in not properly instructing the jury under the COOLEY standard, even though the defendant failed to object in the prior proceedings.
Reversed and remanded for trial.
R.B. BURNS, J., concurred.
R.M. MAHER, J. (dissenting).
Whether the Supreme Court's holding in People v Crittle, 390 Mich 367; 212 NW2d 196 (1973), is to be given retroactive application is still an open question. See People v Rich, 394 Mich 804 (1975), People v Elmer D. Robinson, 394 Mich 804 (1975). The language in People v Crittle, supra, 374, suggests prospective application as do the traditional factors used in deciding the question of retroactivity. See People v Parsons, 59 Mich App 79; 228 NW2d 852 (1975). See also, People v Scott, 55 Mich App 739, 746, fn 6; 223 NW2d 330 (1974). I would apply Crittle prospectively.
