The opinion
BUSSEY, Judge,
dissenting.
The facts of this case reveal that appellant’s dead Doberman Pinscher was found in a shed behind the house from which appellant had recently been evicted. The emaciated, malnourished dog was lying inside the shed, which was full of trash, with a rope around its neck which was tied to a metal clothesline pole. There was no food or water in the surrounding area. Appellant admitted that she owned the dog.
I am of the opinion that due to the overwhelming evidence of guilt presented at trial, the failure of the trial court to appoint counsel for the preliminary hearing did not prejudice appellant nor contribute to her conviction and is therefore harmless beyond a reasonable doubt. McCraw v. State, 476 P.2d 370, 374 (Okl.Cr.1970). The assertion of the majority that Holloway v. Arkansas, 435 U.S. 475, 489 , 98 S.Ct. 1173, 1181 , 55 L.Ed.2d 426, 437-38 (1977) holds that there can be no harmless error when counsel is denied at a critical stage of a criminal proceeding is erroneous. In Holloway , the Supreme Court held that, “Accordingly, when a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital case, reversal is automatic.” 435 U.S. at 489 , 98 S.Ct. at 1181 . The Supreme Court of the United States has never held that the harmless error doctrine does not apply to the failure to appoint counsel for an indigent defendant at preliminary hearing in a non-capital case. Since curelty to Animals is obviously not a capital offense, McCraw v. State, is still the law in this State and should not be overruled.
Although, in my opinion, failure to appoint counsel at a preliminary hearing for an indigent defendant in a non-capital case does not require automatic reversal, un *43 questionably the better practice is for the trial court to appoint counsel for an indigent defendant prior to preliminary examination.
I would affirm the judgment and sentence.