OPINION OF THE COURT

BRICKLEY, J.

On August 2, 1974, defendant, while in the course of leaving his sister's home, which was surrounded by police, shot and killed a Dearborn police lieutenant.

On September 13, 1975, defendant was convicted of first-degree murder, MCL 750.316; MSA 28.548. That conviction was reversed by the Court of Appeals in July of 1977 for failure to instruct the jury on the defendant's theory of the case. 75 Mich. App. 248; 255 N.W.2d 11 (1977).

His second trial, in September of 1978, also resulted in a conviction of first-degree murder which was affirmed by the Court of Appeals in an unpublished opinion per curiam issued on October 27, 1980. We granted leave to appeal. 414 Mich. 851 (1982).

The defendant alleges that the trial court erred by failing to instruct the jury on the defense of insanity and by giving an erroneous intoxication instruction, that trial counsel was ineffective, and that reversal is required.

We conclude that any instructional error which occurred was harmless, that the intoxication instruction was not erroneous, and that there is no basis for the claim of ineffective assistance of counsel.

There is no dispute about the events leading up to the shooting. The defendant went to the home of his sister in the early morning hours of August 2, 1974. Against his sister's wishes, he forcibly retrieved his shotgun which had been locked in his brother-in-law's gun cabinet. In the course of her attempts to get the defendant to leave, defendant's sister caused the police to be notified because of her alarm over the defendant's demeanor and actions. Finally, she and her children vacated the house. The police had surrounded the house when the defendant later attempted to leave carrying a loaded shotgun, and he was asked by the police to surrender it. After some conversation with the police, he fired at and killed Lt. Louis Hinkel. Defendant was wounded in the ensuing gunfire.

Before the second trial, defense counsel filed a notice of intent to enter a plea of insanity. On the first day of trial, following testimony as to defendant's mental condition, counsel was asked by the trial court if he intended to raise a defense of insanity. Upon receiving an affirmative response, the court interrupted the proceedings and gave the jury a preliminary instruction on mental illness, insanity, and the defense of intoxication.

At the close of proofs, defense counsel submitted requests for instructions which included an insanity instruction. This instruction was not given by the trial court. The request for instructions also contained a diminished capacity instruction for intoxication which was given. In addition, the trial court instructed the jury on the verdict of guilty but mentally ill. No objections were made to the instruction.

I

Complicating the resolution of the insanity issue in this case is the fact that the trial court and possibly trial counsel were laboring under the false impression that Michigan's new statutory definition of legal insanity, enacted between the time the offense was committed and the second trial, was applicable. Clearly it was not. The proper test for insanity for this offense is found in People v Martin, 386 Mich. 407, 418; 192 N.W.2d 215 (1971):

"The salient elements of the Michigan test are: 1) whether the defendant knew what he was doing was right or wrong; and 2) if he did, did he have the power, the will power, to resist doing the wrongful act? The Michigan test encompasses not only a sudden overpowering, irresistible impulse but any situation or condition in which the power, 'the will power' to resist, is insufficient to restrain commission of the wrongful act."

In addition, the verdict of guilty but mentally ill was not an option for the jury in this case.

We now proceed to defendant's contention that the trial court erred in failing to instruct the jury on insanity and that reversal is required. Although defendant concedes that no expert testimony was elicited in support of an insanity defense, defendant argues that sufficient lay testimony was introduced to overturn the presumption of sanity and to entitle him to a jury instruction.

During the course of the trial defendant's expert witness, a forensic psychiatrist, testified that, in his opinion, "there is no clinical evidence from what I can see that he was insane at the time of the shooting". As a result, defendant is forced to rely on the testimony of lay witnesses, mostly family and friends, to establish this defense. Defendant characterizes their testimony as follows: "They painted a picture of a previously normal adolescent who returned from Vietnam a shell-shocked young man, tormented by memories of war atrocities. They described fits of irrationality, emotional breakdowns, massive and constant consumption of drugs and alcohol, bizarre incidents such as having target practice in his mother's basement, or questioning his parentage. They described him as not being in his right mind, as being sick, as being mentally ill, and as needing psychiatric help."

The Court of Appeals contrasted the defendant's conviction with the conviction obtained in People v VanDiver, 79 Mich. App. 539; 261 N.W.2d 78 (1977). In VanDiver, the defendant's conviction by a jury of assault with intent to do great bodily harm less than murder was reversed because the trial judge erred in refusing a request for an instruction on the defense of insanity. The only evidence which supported an insanity defense in that case was the defendant's rambling and often incomprehensible testimony at trial. That testimony revealed that the defendant had been institutionalized almost continuously since the age of seven for mental and emotional disturbances. When asked, the defendant could not explain his behavior, was unable to describe his emotions on the day of the alleged assault, and indicated that he was unable to control his conduct or his feelings on that day.

In upholding the defendant's second conviction in the present case, the Court of Appeals concluded:

"Unlike the defendant in VanDiver, supra, the instant defendant demonstrated an awareness of what occurred on the night of the incident, and what his thoughts and feelings were at the time. The record indicates no history of institutionalization or serious mental illness prior to the incident. The defendant was steadily employed by the Ford Motor Company at the time of the incident. Lay testimony regarding defendant's mental state after returning from Vietnam suggests that the defendant did, at times, show that he was emotionally troubled by his war experiences. But, in our view, none of the various testimony introduced to describe defendant's mental state demonstrated that defendant was ever legally insane according to the definition in VanDiver, supra, nor does defendant's or police testimony indicate that defendant was legally insane at the time of the shooting.

"While the record does not indicate whether the court's instructional lapse at the close of trial was an oversight or a conscious refusal to instruct on insanity, we submit that the court was not obligated to give such an instruction because of insufficient evidence in the record."

We think after our own review of the record that the Court of Appeals correctly concluded that the testimony relied upon by defendant is not material to the defense of legal insanity. As we said in People v Abernathy, 253 Mich. 583, 587; 235 N.W. 261 (1931), "the sufficiency of the evidence is [to be resolved by] the jury unless there is no evidence at all upon a material point". (Emphasis supplied.)

The amount of evidence that is sufficient to overcome the presumption of sanity is minimal. In People v Garbutt, 17 Mich. 9, 23 (1868), Justice COOLEY described it as "any evidence * * * which tends to overthrow the presumption". The current Michigan standard is stated in People v Krugman, 377 Mich. 559, 563; 141 N.W.2d 33 (1966): "A criminal defendant is presumptively sane. However, once there is any evidence introduced of insanity, the burden of proof is on the prosecution to establish defendant's sanity beyond a reasonable doubt. People v Garbutt, supra; People v Eggleston, 186 Mich. 510; 152 N.W. 944 (1915)."

Defendant's sister merely testified about his use of alcohol and drugs, his inability to properly communicate, and a sudden, unconnected emotional outburst shortly before the homicide. In response to an inquiry about her brother's mental condition on the date of this incident, she stated that he "wasn't in his right mind" and was "sick". She stated that defendant was angry and drunk, possibly high, and "weird".

Defendant's brother-in-law stated that defendant was a lot quieter after his tour in Vietnam. He testified that he and defendant had discussed defendant's experience in Vietnam. He stated that he had never witnessed an emotional outburst by defendant related to his war experiences.

Defendant's girlfriend testified that defendant had become increasingly dependent on alcohol. She stated that she had met defendant after his discharge. She related "combat" stories told to her by the defendant and testified that defendant found his Vietnam experience upsetting. She stated that defendant had never been violent in her presence. She further stated that, in her opinion, defendant had become mentally ill by August, 1974, and that this mental condition was very much aggravated when intoxicated. She characterized the aggravation as increased depression or increased despondency. On cross-examination, she defined mental illness as follows: "My concept of it would be somebody that can't associate with the world the way it is now, with their life the way they have to."

Defendant's aunt testified as a character witness that the defendant was "mentally sick from drugs and alcohol" and "mentally ill over his drugs and his drinking". She based her conclusion on the defendant's apparent excessive use of alcohol in her presence, the defendant's periodic use of drugs in her presence, and the defendant's nonsensical conversations with her. She testified that on the night in question the defendant was under the influence of drugs and alcohol.

Defendant's stepbrother and longtime friend testified that defendant had changed following his tour in Vietnam. He stated that defendant had become increasingly inattentive and was drinking more following his tour in Vietnam. When asked, he testified: "In my opinion, from what I know of him, he needs to talk to somebody about his mental health." On cross-examination, he stated that the defendant's inattention was not normal. On redirect, he stated that his opinion that defendant was mentally ill during July of 1974 took into consideration his knowledge of the defendant's act of target shooting with a shotgun in the basement of the defendant's mother's home.

The people argue that the testimony of these lay witnesses is not germane to the applicable standard for legal insanity: whether defendant knew what he was doing was right or wrong, or, if he did, whether he had the will power to resist doing the wrongful act. We agree.

In addition, the defendant's own direct examination testimony undercuts whatever force the testimony of his lay witnesses might have possessed. While testifying, the defendant denied any alcohol use and any drug use following his tour of duty in Vietnam. As to Vietnam, he denied that he had been involved in active combat or that he had ever killed anyone. The defendant stated that he had been drinking prior to the homicide because it was a hot day. He also stated that he had taken drugs that day. On direct examination, defendant was skillfully led through a narration of the events prior to the homicide. The apparent purpose of this narration was to demonstrate that the defendant could not remember many of the details of his whereabouts prior to the homicide and that defendant had suffered a "partial" blackout. On cross-examination, although much of defendant's testimony may be characterized as non-responsive and wandering, the prosecutor did elicit from the defendant many specifics about his activities immediately prior to the incident. Defendant did recall having said to the police in this barricade situation, "What have I done wrong?" In addition, the defendant stated that no one could have been harmed by his target practice in his mother's basement because he was alone at the time. And, contrary to his aunt's testimony that he was so drunk he did not recognize her at a bar a few hours before the shooting, defendant recalled seeing her at the bar.

While there is much to suggest that the defendant suffered from a substance abuse problem, mere assertions that defendant was "weird" or "unable to meaningfully communicate" or "mentally ill" are insufficient to satisfy the Krugman "any evidence" standard for insanity under Martin. In addition, the defendant's own testimony at trial was consistent with a finding of sanity at the time of the homicide. Defendant asked the police what he had done wrong as he departed from his sister's home. He was reassured when informed he had done nothing wrong. He talked with Lt. Hinkel for some minutes before firing his weapon. He shot Lt. Hinkel after assuring him that the shotgun was not loaded, thus inducing him to stand up from his crouched, protected position.

By way of summary, since there was insufficient evidence of insanity, no insanity instruction was necessary, and the failure by the trial court to instruct on insanity was not error. It is true that a defendant is entitled to a properly instructed jury and that, in this case, the jury was instructed on the verdict of guilty but mentally ill. The giving of this instruction by the trial court, even without objection, was error because such a verdict was not available on the date of this offense. However, the error was at worst harmless. Since we have concluded that the verdict of not guilty by reason of insanity was unavailable to the jury, it could not, as defendant suggests, have been steered away from an insanity verdict by the guilty but mentally ill instruction. Thus, the instruction was merely superfluous and did not prejudice the defense of diminished capacity.

II

The defendant contends that the trial court committed error requiring reversal in using the "capacity standard" ruled improper in People v Crittle, 390 Mich. 367; 212 N.W.2d 196 (1973), in instructing the jury as to his defense of intoxication. The trial court instructed the jury as follows:

"Now in this case the defendant has raised a defense of intoxication, and I want to state to you that the defense of intoxication may be considered only in the charge of first-degree murder. It is not a defense to second-degree murder, manslaughter, involuntary manslaughter, careless and reckless use of a firearm, or felonious assault. The defense of intoxication is available only in the case of first-degree murder because that is called a specific intent crime. If you consider the defense of intoxication, you may consider [it] only with the relationship to the charge of first-degree murder, and it may not be considered as a defense to any of the other crimes that I have listed. It is only a defense to first-degree murder.

"The general law is that drunkenness will not excuse a crime, but where a certain intent is a necessary element of a crime, the crime cannot have been committed when the intent did not exist. If you consider the defense of intoxication in the first-degree murder charge, you must determine, if you consider the defense, whether he was so intoxicated that he was unable to form the intent and premeditation necessary for first-degree murder. Obviously, the people have the burden beyond a reasonable doubt to prove that he was not intoxicated in this case. So, as I say, the defense of intoxication can only be considered in connection with first-degree murder and you must look at it to see if he was so intoxicated that he could not have intent, so intoxicated that he could not form the intent necessary for first-degree murder. As I say, the people must prove beyond a reasonable doubt that he was not so intoxicated, but the defense may only be considered in the case of first-degree murder and nothing else." (Emphasis supplied.)

There was no objection to this instruction.

In Crittle the trial judge had given the following instruction:

"Now, ladies and gentlemen, I'm going to instruct you on intoxication as it might apply to this question of intent or knowledge of wrong. One of the necessary elements to constitute the offense charged here, as well as I have identified earlier for certain of the lesser included offenses, is a felonious intent entertained by the defendant at the time it is claimed he committed such offense. If you find that the act was done and, as I have said before, you must also find that there was an intent to commit such act, if you find the defendant committed the offense but that he was under the influence of intoxicating liquor to such an extent that he was unable to form the necessary criminal intent, then you cannot find the defendant guilty of the crime requiring an intent.

"You would not, however, be justified in acquitting the defendant, even though you found that he was intoxicated at the time of the offense, unless you find that he was intoxicated to such an extent from an overindulgence in intoxicating liquor, as shown by the evidence in the case, that he was not conscious of what he was doing or why he was doing it and so could not have formed the intent.

"Consider the actions and speech of the defendant at the time of the alleged crime and before and after, along with all of the other evidence in the case, in determining whether he was capable at the time of entertaining the necessary intent required even though there may have been drinking." 390 Mich. 375-376.

In Crittle, we condemned the instructions given, together with various other instructions, which indicate the standard to be whether the defendant was so intoxicated at the time of the offense that the intent "could not exist". Instead we stated that the test is simply whether the intent "did not exist". However, the issue in Crittle was whether the instruction was erroneous. Certainly an instruction on intoxication which informs the jury that they would not be justified in acquitting unless they found that the defendant "was not conscious of what he was doing or why he was doing it" is not proper. In reaching the conclusion that the instruction given in Crittle was improper, we relied upon Justice COOLEY'S opinion in People v Walker, 38 Mich. 156, 158 (1878):

"While it is true that drunkenness cannot excuse 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. In larceny the crime does not consist in the wrongful taking of the property, for that might be a mere trespass; but it consists in the wrongful taking with felonious intent; and if the defendant, for any reason whatever, indulged no such intent, the crime cannot have been committed. This was fully explained by Mr. Justice CHRISTIANCY in Roberts v People, 19 Mich. 401 (1870), and is familiar law."

Justice CHRISTIANCY, as noted by Justice COOLEY, discussed the question of intoxication as a defense in Roberts v People, 19 Mich. 418:

"In determining the question whether the assault was committed with the intent charged, it was therefore material to inquire whether the defendant's mental faculties were so far overcome by the effect of intoxication, as to render him incapable of entertaining the intent. And for this purpose, it was the right and duty of the jury — as upon the question of intent of which this forms a part — to take into consideration the nature and circumstances of the assault, the actions, conduct and demeanor of the defendant, and his declaration before, at the time, and after the assault; and especially to consider the nature of the intent, and what degree of mental capacity was necessary to enable him to entertain the simple intent to kill, under the circumstances of this case — or, which is the same thing, how far the mental faculties must be obscured by intoxication to render him incapable of entertaining that particular intent." (Emphasis supplied.)

It is evident that Justice CHRISTIANCY wrote with approval of the "capacity standard" and that Justice COOLEY approved of what Justice CHRISTIANCY had written.

We are convinced that that portion of our opinion in Crittle which concluded that the "capacity standard" is improper, per se, was not a correct statement of the law. The proper standard is that articulated by Justice CHRISTIANCY more than a century ago — whether the degree of intoxication was so great as to render the accused "incapable of entertaining the intent". To this extent this opinion diverges from Crittle, Crittle is overruled.

The instruction given by the trial court in the instant case accurately informed the jury that the defense of intoxication would serve to negate the specific intent element of the crime charged, if the defendant "was so intoxicated that he was unable to form the intent" and "so intoxicated that he could not form the intent". This instruction was not erroneous.

III

The defendant argues that he was denied effective assistance of trial counsel because his attorney, in closing argument, expressed to the jury his personal belief that the defendant loaded the shotgun and shot Lt. Hinkel and that the defendant's testimony was untrue. The defendant objects to the following statements made during closing argument:

"Now I will say to you, ladies and gentlemen of the jury, that I don't believe Tony Savoie when he says that he didn't put any pellets * * * slugs in the shotgun."

"Well, I wouldn't come up before you, ladies and gentlemen, and tell you that the same story that Savoie told you, that he didn't fire the shot or that he didn't fire that gun or that it wasn't his gun — let me put it his way — that it wasn't his gun which shot Lieutenant Hinkel".

The people argue that the quotations from closing argument have been taken unfairly out of context. We agree. The thrust of the defense was that the defendant was so intoxicated that he could not form the necessary intent to support a conviction of first-degree murder. The defendant's memory lapses at trial support this defense. In light of the evidence adduced at trial it was frivolous to argue that the defendant had not loaded the shotgun or shot Lt. Hinkel. When read in its entirety, the record shows that defense counsel ably argued the evidence in support of the defense theory.

Affirmed.

RYAN, CAVANAGH, and BOYLE, JJ., concurred with BRICKLEY, J.