Ark. Code Ann. § 5-3-401 (2026)

Case Notes

Accomplices.

A coconspirator may also be an accomplice. Shrader v. State, 13 Ark. App. 17, 678 S.W.2d 777 (1984).

Consummation of Offense.

A conspiracy to commit a felony was merged in the felony when committed; after the felony was consummated, the conspiracy was not indictable. Elsey v. State, 47 Ark. 572, 2 S.W. 337 (1886) (decision under prior law).

Evidence.

For cases discussing admissibility of acts and declarations of coconspirators, see Benton v. State, 78 Ark. 284, 94 S.W. 688 (1906); Harper v. State, 79 Ark. 594, 96 S.W. 1003 (1906); Storms v. State, 81 Ark. 25, 98 S.W. 678 (1906); Cumnock v. State, 87 Ark. 34, 112 S.W. 147 (1908); Wiley v. State, 92 Ark. 586, 124 S.W. 249 (1909); Easter v. State, 96 Ark. 629, 132 S.W. 924 (1910); Parker v. State, 98 Ark. 575, 137 S.W. 253 (1911) (preceding decisions under prior law); Smith v. State, 6 Ark. App. 228, 640 S.W.2d 805 (1982).

A conspiracy would be shown by circumstantial evidence. Venable v. State, 156 Ark. 564, 246 S.W. 860 (1923). See also Powell v. State, 133 Ark. 477, 203 S.W. 25 (1918) (decision under prior law).

Under this section, it is required that state both allege and prove specific overt act evidencing that conspiracy has been put in motion, and, provided issue is properly raised, failure to both allege and prove such an act is fatal to a conviction. Guinn v. State, 23 Ark. App. 5, 740 S.W.2d 148 (1987).

State may rely on inferences drawn from the course of conduct of alleged conspirators to provide evidence of the agreement. Shamlin v. State, 23 Ark. App. 39, 743 S.W.2d 1 (1988), rehearing denied, 23 Ark. App. 39, 744 S.W.2d 405 (1988), cert. denied, Shamlin v. Arkansas, 488 U.S. 863, 109 S. Ct. 163 (1988).

Conspiracy to commit an unlawful act may be proved by circumstances and the inferences drawn from the course of conduct of the alleged conspirators. Lee v. State, 27 Ark. App. 198, 770 S.W.2d 148 (1989), cert. denied, Lee v. Arkansas, 493 U.S. 847, 110 S. Ct. 142 (1989).

Defendant's conviction for conspiracy to commit capital murder was supported by substantial evidence. Jones v. State, 45 Ark. App. 28, 871 S.W.2d 403 (1994).

Defendant committed an overt act in furtherance of a conspiracy to commit kidnapping, aggravated robbery, theft of property, and aggravated residential burglary because he took another person to his residence and showed the person the inside of the premises, discussed how to break in the residence and how to subdue his wife, and identified the property to be taken from the residence. Winkler v. State, 2012 Ark. App. 704, 425 S.W.3d 808 (2012).

Evidence was sufficient to convict defendant of conspiracy to deliver methamphetamine as the jury could infer that an agreement existed between defendant and the individual who sold the drugs to a confidential informant; defendant possessed a large amount of methamphetamine in his truck, he possessed the money that the confidential informant had previously given to the seller, the seller referred to defendant as his source, and defendant possessed digital scales with the methamphetamine. Vonholt v. State, 2018 Ark. App. 53, 540 S.W.3d 312 (2018).

Substantial evidence supported defendant's conviction for conspiracy to commit rape because there was evidence that he made a plan with an undercover officer posing as a father to rape his 13-year-old daughter, and defendant took overt steps in furtherance of the plan; the sexually graphic language used by defendant left no doubt that he wanted to have sex with the father's daughter, plus defendant showed up at the meeting place at the appointed time in the vehicle he said he would be driving, and he had two gifts in his vehicle for the daughter. Frederic v. State, 2018 Ark. App. 449, 560 S.W.3d 494 (2018).

Evidence was sufficient to support defendant's conviction of conspiracy to deliver where a confidential informant bought methamphetamine in a transaction that occurred in a vehicle occupied by defendant driver and the codefendant; the jury could reasonably conclude that defendant and codefendant were working together to deliver methamphetamine and that defendant assisted in that effort. Baker v. State, 2019 Ark. App. 515, 588 S.W.3d 844 (2019).

Inchoate Offense.

A conspiracy is an inchoate offense, and under Arkansas law it is a crime in and of itself. Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983).

Indictment or Information.

An indictment for conspiracy to commit a felony had to allege that the felony was not committed. Elsey v. State, 47 Ark. 572, 2 S.W. 337 (1886) (decision under prior law).

Indictment that charged defendant and others with the crime of conspiracy to commit a felony clearly apprised defendant of the crime charged and amendment of the indictment to add the words “the felony not having been committed” was simply a matter of form, which did nothing to change the nature of the crime otherwise charged. Owen v. State, 263 Ark. 493, 565 S.W.2d 607 (1978) (decision under prior law).

Jury Question.

Where an individual's knowledge of conspiracy was in dispute, his complicity was a fact issue which was properly presented to the jury. Strickland v. State, 16 Ark. App. 293, 701 S.W.2d 127 (1985).

Liability.

A conspiracy offense under the Arkansas Criminal Code is intended to be a separate crime, and liability is not imposed on a conspirator for the substantive offenses that are the object of the conspiracy. Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983).

Where defendant was charged as a conspirator to commit a crime he could be convicted where State did not prove the crime was committed. Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983).

Where the combination of persons to do an unlawful act is shown, and the plan terminates in a crime, each person is liable for the acts of the others undertaken in furtherance of the plan. Lee v. State, 27 Ark. App. 198, 770 S.W.2d 148 (1989), cert. denied, Lee v. Arkansas, 493 U.S. 847, 110 S. Ct. 142 (1989).

Sentence.

There was no error in the trial court's sentencing of defendant because the court complied with the conspiracy statute and had the authority to impose a sentence of nine years' imprisonment with respect to the conspiracy conviction. Winkler v. State, 2012 Ark. App. 704, 425 S.W.3d 808 (2012).

Cited: Ellis v. State, 4 Ark. App. 201, 628 S.W.2d 871 (1982); Sweat v. State, 5 Ark. App. 284, 635 S.W.2d 296 (1982); Estate of Sargent v. Benton State Bank, 279 Ark. 402, 652 S.W.2d 10 (1983); Guinn v. State, 27 Ark. App. 260, 771 S.W.2d 290 (1989); Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994); Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997).