concurring specially.
I concur in the court’s judgment but disagree with the majority’s approval of the holding in West v. State, 229 Ga. 427 (1) (192 SE2d 163) cited in Division 3 of the court’s opinion, and with the majority’s holding in Division 4 of the opinion "that a subsequent indictment, *778trial and conviction renders the omission of a preliminary hearing harmless.”
The majority, citing West and Kirby v. Illinois, 406 U. S. 682 (92 SC 1877, 32 LE2d 411) (1972), hold that at the time of the lineup involved here the case was still in an investigatory stage because formal criminal proceedings do not begin in Georgia until indictment. I disagree with this holding but concur in the result reached by the majority because the record shows this defendant was advised of his right to have counsel at the lineup and was not indigent, as he retained counsel for his subsequent trial.
In United States v. Wade, 388 U. S. 218, 229-30 (87 SC 1926,18 LE2d 1149) (1967), the Supreme Court of the United States set out the following rationale in support of the holding that certain pre-trial confrontations are critical stages which require an accused to have counsel: "The pre-trial confrontation for purpose of identification may take the form of a lineup ... or presentation of the suspect alone to the witness ... It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification.”
In Kirby v. Illinois, supra, the Supreme Court, in a plurality decision, refused to apply Wade to a one-man station-house showup conducted before formal criminal charges were filed against the accused. The Georgia Supreme Court has followed Kirby in West v. State, supra, by holding that the indictment is the time of initiation of formal proceedings and therefore is the earliest time at which the right attaches to counsel at a lineup. In my view, Kirby does not mandate the indictment stage as the earliest time when the right to counsel attaches for a lineup identification arranged by the state. Several significant terms, to wit: "formal charge, preliminary hearing, indictment, information or arraignment,” were used by the plurality of the Supreme Court as synonyms to indicate the time criminal adversary proceedings begin in the several states. The inherent problems in holding that indictment is the time when adversary criminal proceedings commence in Georgia are obvious. For example, a prosecutor could delay the seeking of an *779indictment against an indigent defendant until all lineup procedures desired by the state have been exhausted. The attachment of special significance to the indictment is not persuasive.1 I believe a more realistic and fairer approach would be to hold that the time for determining when formal criminal proceedings begin in Georgia is at the time a warrant is issued for the arrest of the accused, or, in the case of a warrantless arrest, at the time the accused must be brought before a committing magistrate pursuant to Code Ann. § 27-212.
This does not mean that counsel is required for all confrontations occurring after arrest, because to require counsel for every post-arrest confrontation would be unduly burdensome upon the state and would jeopardize the possibility of identifications made, in many instances, either on the scene or shortly after the occurrence of the alleged crime. E. g., see, Foster v. State (Md. App.) 323 A. 2d 419. On the other hand, the right to counsel should attach to any lineup conducted by the state after the accused is in custody under a warrant.
This defendant also contends he was denied a commitment hearing and if it had not been waived, I would require a hearing on this issue for the reasons set forth in my dissent in Phillips v. Stynchcombe, 231 Ga. 430 (1) (202 SE2d 26). However, since a commitment hearing was waived in this case, I find no reversible error present.
I am authorized to state that Justice Gunter concurs in this special concurrence.
For a good discussion of Kirby and its application, see Grano: Kirby, Biggers and Ash: Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent? 72 Mich. L. Rev. 719 (1974).