Ark. Code Ann. § 5-38-301 (2026)

Research References

U. Ark. Little Rock L.J.

Survey — Criminal Law, 14 U. Ark. Little Rock L.J. 753.

Case Notes

Accomplice or Accessory.

Former section defining arson did not abolish the common-law distinction between a principal and an accessory before the fact so that one who directed another to burn a certain building but was not present when his order was carried out could not be convicted as a principal. Fisher v. State, 162 Ark. 183, 257 S.W. 734 (1924) (decision under prior law).

Refusal to submit to the jury in an arson trial the question of whether state's witnesses were accomplices held error. Satterfield v. State, 245 Ark. 337, 432 S.W.2d 472 (1968) (decision under prior law).

Appellate Review.

Substantial evidence supported defendant's arson and first-degree murder convictions; however, the case was reversed and remanded for a new trial because the record was not sufficient for the Supreme Court of Arkansas to conduct its review under Ark. Sup. Ct. R. 4-3(i). Thrower v. State, 2018 Ark. 256, 554 S.W.3d 825 (2018).

Damage.

It was not necessary to constitute arson that any part of the house should be wholly consumed. Mary v. State, 24 Ark. 44 (1862); State v. Snellgrove, 71 Ark. 101, 71 S.W. 266 (1902) (preceding decisions under prior law).

To support a charge of arson it was not necessary that the building alleged to have been burned should have been burned down; it was sufficient that it be damaged by the fire. Bennett v. State, 201 Ark. 237, 144 S.W.2d 476 (1940) (decision under prior law).

Double Jeopardy.

Defendant was properly convicted of capital murder and arson after he told a neighbor that his trailer home exploded while his girlfriend was inside; the constitutional prohibition against double jeopardy was not violated because § 5-1-110(d)(1)(A) permitted a sentence for both crimes. Meadows v. State, 358 Ark. 396, 191 S.W.3d 527 (2004).

Elements.

Arson is not an “element included offense” of conspiracy to commit theft by deception. 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).

In order to overcome the common law presumption against arson, the state must prove not only the burning of building, but also that it was burned by the willful act of some person criminally responsible for his acts, and not by natural or accidental causes. Allen v. State, 40 Ark. App. 158, 842 S.W.2d 468 (1992).

Evidence.

In a prosecution for destroying a building by means of dynamite, evidence concerning the extent of the injury to the building was admissible. Spurgeon v. State, 160 Ark. 112, 254 S.W. 376 (1923) (decision under prior law).

Evidence held sufficient to sustain the conviction. Monts v. State, 233 Ark. 816, 349 S.W.2d 350 (1961) (decision under prior law); Riddick v. State, 271 Ark. 203, 607 S.W.2d 671 (1980).

There is a common law presumption against arson in the instance of an unexplained fire, and evidence must be of a “substantial character” to rebut this presumption. Thomas v. State, 295 Ark. 29, 746 S.W.2d 49 (1988).

Evidence presented by the state was sufficient to overcome the common law presumption against arson, and the trial court did not err in denying defendant's motion for a directed verdict. Allen v. State, 40 Ark. App. 158, 842 S.W.2d 468 (1992).

Circumstantial evidence of burglary and arson held sufficient to support conviction. Armstrong v. State, 45 Ark. App. 72, 871 S.W.2d 420 (1994).

Evidence was sufficient for conviction of arson where defendant stated that the victim's body was placed on a wood burning stove where investigator's stated the fire had started, defendant admitted that he had kicked the pipe off of the stove, and the value of the destroyed trailer and its contents was between $20,000 and $25,000. Johnson v. State, 358 Ark. 460, 193 S.W.3d 260 (2004).

Where witness testified that (1) he was in victim's home the day of the murder, (2) defendant arrived with a folding knife and entered victim's bedroom, (3) the victim screamed, (4) defendant's husband stated that defendant had killed the victim, and (5) the witness saw the husband take a can of kerosene from the front porch, there was substantial evidence in support of the jury's conviction of defendant for capital murder and arson. Meadows v. State, 360 Ark. 5, 199 S.W.3d 634 (2004).

There was sufficient evidence that the fire that destroyed two vehicles was purposely set by a person, and that defendant was that person, where witnesses testified that the fire was more than likely started with gasoline or some other equivalent accelerant and there was evidence that defendant had made threatening statements to burn the victim's belongings. Lowry v. State, 364 Ark. 6, 216 S.W.3d 101 (2005).

There was substantial evidence to convict defendant of arson because (1) a firefighter stated that, while responding to the fire, he saw defendant walking away from the crime scene; (2) the daughter-in-law of the victim's next door neighbor saw a pedestrian trying to hide his face from her as she drove past him, and she testified that defendant would have known her truck because she was at her mother-in-law's home about three days a week; (3) a reserve deputy who handled bloodhounds testified that his select-scent dog tracked defendant's scent 1.8 miles from a county road to the back door of the victim's mobile home; (4) there were spermatozoa cells present in the victim's rectum, which could generally live only 24 hours there, which gave rise to an inference that defendant had sexual relations with the victim close to the time she died; (5) defendant's DNA was present on the rectal swab and the probability of selecting an individual at random from the general population having the same genetic markers as those from defendant would be one in one trillion; (6) medical evidence showed that the victim was dead before the fire began, implying that she did not start it; and (7) the lead investigator on the fire ruled out any electrical malfunction as the cause of the fire. Wright v. State, 368 Ark. 629, 249 S.W.3d 133 (2007).

There was substantial evidence to overcome a motion for directed verdict because there was evidence that defendant had opportunity and motive, had displayed anger towards his wife, and had acted on that anger by destroying items in the home, and thus his arson conviction was affirmed; a great deal of the case hinged on testimony, and while defendant's testimony contradicted the testimony of other witnesses, the jury was free to believe or disbelieve all or any part of any witness's testimony. Booth v. State, 2014 Ark. App. 572, 444 S.W.3d 900 (2014).

There was substantial evidence supporting defendant's convictions for arson and residential burglary, including testimony that the fire was not accidental, that defendant was seen coming from the direction of the apartment with a pack of cigarettes and a lighter after the fire, and that defendant sent the victim a text making references to a fire her father had started when she was younger. Fronterhouse v. State, 2015 Ark. App. 211, 463 S.W.3d 312 (2015).

Defendant's confession that he started the first fire that burned the cabin down, along with the cabin owner's testimony that the electricity and propane were disconnected at the time of the fire and that defendant had repeatedly threatened to burn the cabin days before the fire, and defendant's admission to removing the crime-scene tape, setting the second fire, and having someone remove the scrap metal from the scene, was sufficient to support his conviction for arson. Molpus v. State, 2015 Ark. App. 452, 469 S.W.3d 374 (2015).

Indictment or Information.

Information charging defendants with burning a drug store and the building in which the business was carried on was not bad for duplicity. Bennett v. State, 201 Ark. 237, 144 S.W.2d 476 (1940) (decision under prior law).

Instructions.

Where there was no evidence upon which defendant could have been found guilty of criminal mischief rather than arson, and he either damaged an occupiable structure or he damaged no structure, there was no basis for his request for an instruction on conspiracy to commit criminal mischief instead of an instruction on conspiracy to commit arson. Ellis v. State, 4 Ark. App. 201, 628 S.W.2d 871 (1982).

Intent.

The offense was committed where one burned his own house maliciously in the sense of an intention, with bad motive, of violating the law. Turner v. State, 155 Ark. 443, 244 S.W. 727 (1922) (decision under prior law).

The intention and design of the party were best explained by a complete view of every part of his conduct at the time, and not merely from the proof of a single and isolated act or declaration, so where several felonies were connected together, and formed part of one entire transaction, then one was evidence to prove the character of the other. Perry v. State, 232 Ark. 959, 342 S.W.2d 95 (1961) (decision under prior law).

Testimony as to other dynamitings planned for the same night was clearly admissible to show the scheme, pattern and intent of defendant in the dynamiting of building for which he was being tried. Lauderdale v. State, 233 Ark. 96, 343 S.W.2d 422 (1961) (decision under prior law).

Circumstantial evidence held sufficient for the injury to conclude that defendant intentionally started the fire. Parris v. State, 270 Ark. 269, 604 S.W.2d 582 (Ct. App. 1980).

Defendant, as an accomplice to arson, did not have to have a “conscious object” to commit arson. Reed v. State, 326 Ark. 27, 929 S.W.2d 703 (1996).

Lesser Included Offense.

Arson is not a lesser offense included within conspiracy to commit theft by deception. 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).

Occupiable Structure.

Clubhouse for a golf course is an “occupiable structure.” Thomas v. State, 295 Ark. 29, 746 S.W.2d 49 (1988).

Sentence.

Because the sentence of 20 years' imprisonment with a 10-year suspended imposition of sentence, while falling within the statutory-sentencing range for Class A arson under subdivision (b)(5) of this section and § 5-4-401(a)(2), exceeded the range for Class B residential burglary and Class C theft of property, under §§ 5-39-201(a)(2), 5-36-103(b)(2), 5-4-401(a)(3), (4), the residential-burglary and theft-of-property sentences were illegal, and the case was remanded for resentencing. Wakeley v. State, 2013 Ark. App. 231 (2013).

Separate Offenses.

Counts charging arson and burglary are two independent charges and a verdict in one would not be res judicata as to the other, even though based upon the same evidence, so consistency in the verdicts is unnecessary; accordingly, defendant could be acquitted of burglary and convicted of arson. Riddick v. State, 271 Ark. 203, 607 S.W.2d 671 (1980).

Vital Public Facility.

Clubhouse for a golf course is not a “vital public facility.” Thomas v. State, 295 Ark. 29, 746 S.W.2d 49 (1988).

Cited: Ginter v. Stallcup, 869 F.2d 384 (8th Cir. 1989); McNeese v. State, 326 Ark. 787, 935 S.W.2d 246 (1996).