Ark. Code Ann. § 5-39-202 (2026)

Case Notes

Building or Structure.

Any house came within former section defining burglary; an outhouse was not necessarily within the curtilage. Shotwell v. State, 43 Ark. 345 (1884) (decision under prior law).

To constitute burglary, a house or other building had to be entered. Harvick v. State, 49 Ark. 514, 6 S.W. 19 (1887); Shaeffer v. State, 61 Ark. 241, 32 S.W. 679 (1895) (preceding decisions under prior law).

An indictment for burglary of a butcher shop was sustained by proof that the house was used exclusively for the sale of meats. Green v. State, 56 Ark. 386, 19 S.W. 1055 (1892) (decision under prior law).

The entry of a chicken house was a violation of former section defining burglary. Gunter v. State, 79 Ark. 432, 96 S.W. 181 (1906) (decision under prior law).

Containers.

The language of this section neither limits its application to containers likely to contain money nor limits its application to only specific containers listed therein. Powell v. State, 33 Ark. App. 1, 799 S.W.2d 566 (1990).

A realtor's lock box was a “container” within the scope of this section. Powell v. State, 33 Ark. App. 1, 799 S.W.2d 566 (1990).

Double Jeopardy.

Where the charges of breaking or entering and tampering with physical evidence were based upon the same elements, i.e., defendant's breaking into a game and fish officer's vehicle to remove a box, the two felonies were merged into one, and defendant could only be convicted of one offense. Blair v. State, 16 Ark. App. 1, 696 S.W.2d 755 (1985).

Enter or Break.

It was not necessary to prove both breaking and entering, and a breaking by physical force of an obstruction to the entering of a building, no matter how slight, was sufficient, if there was intent to commit a felony. Ingle v. State, 211 Ark. 39, 198 S.W.2d 996 (1947) (decision under prior law).

Crime of burglary was committed though defendant was interrupted after the breaking, but before entry. Mouser v. State, 215 Ark. 131, 219 S.W.2d 611 (1949) (decision under prior law).

Where information charged defendant with unlawfully, willfully and feloniously breaking and entering a certain building, instruction telling jury to convict defendant if they found that he did enter or abet in unlawfully entering was not improper as omitting the word “break.” Pope v. State, 216 Ark. 314, 225 S.W.2d 8 (1949) (decision under prior law).

Evidence insufficient to find defendant guilty of breaking. Terry v. State, 238 Ark. 426, 382 S.W.2d 361 (1964) (decision under prior law).

Both a breaking and entry need not have been shown to convict defendant of burglary since either was sufficient to constitute the crime. Thompson v. State, 252 Ark. 1, 477 S.W.2d 469 (1972) (decision under prior law).

Where defendant broke the glass in the door and stuck his hand through, the intrusion was sufficient even though the defendant could not get the door open. Thompson v. State, 252 Ark. 1, 477 S.W.2d 469 (1972) (decision under prior law).

Either the separate act of breaking or the separate act of entering either in the daytime or nighttime constituted the crime of burglary. Albright v. State, 253 Ark. 671, 488 S.W.2d 11 (1972) (decision under prior law).

This section does not require that defendant enter the machine with any part of his body as opposed to just using a tool. Smith v. State, 47 Ark. App. 83, 884 S.W.2d 632 (1994).

This section treats an entry into any “money vending machine” as the equivalent of an entry into any building, such as a home; entry can mean “to come or go into,” “to penetrate; pierce,” or “to introduce; insert.” Smith v. State, 47 Ark. App. 83, 884 S.W.2d 632 (1994).

Evidence.

Evidence held insufficient to sustain a conviction. Minter v. State, 71 Ark. 178, 71 S.W. 944 (1903); Gunter v. State, 79 Ark. 432, 96 S.W. 181 (1906); Anderson v. State, 84 Ark. 54, 104 S.W. 1096 (1907) (preceding decisions under prior law).

Evidence held sufficient to support conviction. Kelly v. State, 191 Ark. 674, 87 S.W.2d 400 (1935); Mouser v. State, 215 Ark. 131, 219 S.W.2d 611 (1949); Clay v. State, 236 Ark. 398, 366 S.W.2d 299 (1963); Williams v. State, 239 Ark. 686, 393 S.W.2d 618 (1965); Johnson v. State, 252 Ark. 50, 477 S.W.2d 196 (1972); Seals v. State, 256 Ark. 11, 505 S.W.2d 202 (1974); King v. State, 256 Ark. 778, 510 S.W.2d 876 (1974); Randle v. State, 257 Ark. 232, 516 S.W.2d 6 (1974) (preceding decisions under prior law); Selph v. State, 264 Ark. 197, 570 S.W.2d 256 (1978); Jeffers v. State, 268 Ark. 329, 595 S.W.2d 687 (1980); Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990).

Testimony held sufficient to take case to jury as to guilt of defendant. Beasley v. State, 219 Ark. 452, 242 S.W.2d 961 (1951) (decision under prior law).

Evidence sufficient to find appellant guilty of attempted breaking or entering. Powell v. State, 33 Ark. App. 1, 799 S.W.2d 566 (1990).

Substantial evidence supported defendant's conviction for breaking and entering where defendant entered the lobby of the post office with the purpose of committing a theft or felony; in addition, there were bullet holes around the locks and doors that contained money, and the expended shells were found to have come from the rifle that was seen in defendant's truck prior to the incident and was recovered from his possession following the incident. McConnell v. State, — Ark. App. —, — S.W.3d —, 2003 Ark. App. LEXIS 888 (Dec. 10, 2003).

Defendant's conviction was not rendered infirm merely because fingerprint evidence was the only evidence presented against defendant; the fact-finder did not resort to speculation and conjecture in reaching its verdict as defendant's fingerprints were not found on an easily moveable object, but rather, were located at the apparent location of entry to the car, the location of the crime, on the interior of the car's window. Phillips v. State, 88 Ark. App. 17, 194 S.W.3d 222 (2004), aff'd, 361 Ark. 1, 203 S.W.3d 630 (2005).

Defendant's convictions for breaking or entering and theft of property were affirmed where defendant's fingerprints were found inside the passenger door along the top edge of the window of the car that was broken into. Phillips v. State, 88 Ark. App. 17, 194 S.W.3d 222 (2004), aff'd, 361 Ark. 1, 203 S.W.3d 630 (2005).

Evidence was sufficient to convict defendants of breaking or entering and theft of property where (1) a prosecution witness testified that she saw defendants break into an apartment and take a table; (2) a police officer observed that the security door had been pried open and the wooden door was kicked in; and (3) a defense witness testified that they took the table for their own use, that none of them owned it, and that there was an owner, but no one knew where the owner was. Bush v. State, 90 Ark. App. 373, 206 S.W.3d 268 (2005).

When the victim hired defendant to do yard work, he gave him permission to enter the garage where he stored his yard tools; defendant's admission that he stole some equipment from the garage was not sufficient to support his conviction for breaking or entering under this section. The Court of Appeals of Arkansas found that there was not substantial evidence to prove that defendant entered the victim's garage and the adjoining storage room for the purpose of stealing fishing reels and an air compressor/battery charger. White v. State, 2009 Ark. App. 782 (2009).

Defendant's conviction for breaking or entering in violation of subdivisions (a)(4) and (a)(6) of this section, was appropriate because the store's general manager viewed a live feed of her store upon receiving an alert on the sound alarm, and she saw defendant on the feed. A reasonable trier of fact could have concluded that the noise was the result of someone breaking into the coin box; the manager testified that she secured the store upon seeing defendant and that no one entered the store between the time she saw defendant and the time she went to the store the next morning; and a photograph showed defendant to have been the only one in the store at the time the alarm sounded. Haire v. State, 2010 Ark. App. 89 (2010).

Defendant's convictions for breaking or entering in violation of subdivision (a)(1) of this section and theft of property were proper because there was substantial evidence showing that defendant, for the purpose of committing a theft or felony, broke into the victim's vehicle. Substantial evidence also existed to support the finding that defendant knowingly took and exercised unauthorized control over the victim's tow-truck keys with the purpose of depriving the victim of them. Washington v. State, 2010 Ark. App. 339, 374 S.W.3d 822 (2010), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 379 (June 24, 2010).

Substantial evidence supported defendant's convictions for commercial burglary, criminal mischief, and breaking and entering because the testimony of defendant's accomplice, who was defendant's son, was sufficiently corroborated, as required by § 16-89-111(e)(1), by an officer's testimony as to the items he found in defendant's truck, matching the description of items stolen from a convenience store. The accomplice admitted that he and defendant entered the store by using a cable to pull open the front doors and that he and defendant used bolt cutters and a pry bar to break into gaming machines, and these items, along with packages of cigarettes stolen from the store, were found by police officers in defendant's truck. Dunlap v. State, 2010 Ark. App. 582 (2010).

Defendant's convictions for breaking or entering, in violation of subdivision (1) of this section, and theft of property, in violation of § 5-36-103(a)(1), were supported by the evidence because defendant's unlawful presence near a storage shed, flight from the victim, and association with persons involved in the crimes suggested that defendant jointly participated in the crimes under § 5-2-402(a)(2). Goforth v. State, 2010 Ark. App. 735 (2010).

Defendant's conviction for breaking or entering, in violation of subdivision (a)(1) of this section, was proper because defendant was caught red-handed in the victim's house with the contents of the house thrown around and a broken window in the back of the house; defendant ran away from the scene at the first opportunity. It did not matter whether the house was occupiable. Smith v. State, 2011 Ark. App. 162 (2011).

Trial court did not err in denying defendant's motion for a directed verdict during a trial for breaking or entering, in violation of subdivision (a)(1) of this section, because there was sufficient evidence to support the conviction; an officer observed a car with a broken window, and found defendant in the vehicle behind the steering wheel with a screwdriver in defendant's hand. Pruitt v. State, 2011 Ark. App. 754 (2011).

There was sufficient evidence to support a conviction for breaking and entering under this section because there was direct evidence that a victim's purse was taken from her vehicle, defendant was in possession of her purse the morning after it was taken, he lived only a few blocks from the victim's residence, he used at least one of defendant's credit cards and attempted to use her automatic teller machine card to no avail, and he spent the money he found in the purse. Given this direct evidence, there was also circumstantial evidence sufficient to support an inference that defendant was the person who entered the vehicle and took the purse. Piper v. State, 2014 Ark. App. 472, 442 S.W.3d 17 (2014).

Breaking and entering conviction under this section was supported by substantial evidence where defendant unlocked the door of a vehicle and rummaged through its contents; his account regarding his purpose of retrieving a phone and the vehicle's ownership were of no consequence because the issue of credibility was up to the jury. Clark v. State, 2015 Ark. App. 142, 457 S.W.3d 305 (2015).

Defendant was properly convicted of breaking or entering into a vending machine because there was evidence that he struck a vending machine with a hammer to the point that there was full access to the money contained therein, defendant admitted that he struck the machine with the intent to steal the money, and it was immaterial that he did not actually take any money from the machine. Hill v. State, 2015 Ark. App. 630, 475 S.W.3d 568 (2015).

Defendant's conviction for breaking and entering was supported by his admission to entering an apparently unlocked car and that he “might've had a hand in” taking the checkbook. Todd v. State, 2016 Ark. App. 280, 494 S.W.3d 444 (2016).

Evidence was sufficient to convict defendant of felony breaking or entering as a reasonable inference could be drawn that defendant entered with the purpose of committing a theft because he admitted he did not have permission to enter the house; the jury clearly did not credit his statements to the police that he entered the house looking for a house to repair or rent or his statement that he thought the house was abandoned; and defendant and co-defendant entered through the back door and left with items that did not belong to them. Jeffries v. State, 2017 Ark. App. 62, 510 S.W.3d 267 (2017).

Circuit court did not err in denying defendant's motions for directed verdict on two breaking or entering counts and five other counts even though all the evidence was circumstantial; given the entirety of the circumstantial evidence, the jury could conclude without resorting to speculation or conjecture that defendant committed the offenses. Defendant had bypassed a locked gate to enter the victim's property and fled when confronted by the police, his explanation as to why he was on the property was improbable, and he had a backpack and ratchet in his hand that looked like the victim's property. Cobb v. State, 2019 Ark. App. 434, 585 S.W.3d 196 (2019).

Indictment or Information.

In an indictment for burglary, the specific felony intended to be committed by the accused had to be set out or specified but the allegation of the ulterior felony intended need not be set out specifically as would be necessary in an indictment for the actual commission of that felony, and it was sufficient to state the intended offense generally. Davis v. State, 117 Ark. 296, 174 S.W. 567 (1915) (decision under prior law).

Upon an information for burglary and grand larceny, one could not be convicted for receiving stolen property. Pickens v. State, 236 Ark. 404, 366 S.W.2d 283 (1963) (decision under prior law).

Since defendant could have been found guilty of burglary upon proof that he committed either the act of breaking or the act of entering, change of wording in information from breaking and entering to breaking or entering was not prejudicial to him for the proof of two separate acts neither added nor subtracted anything from the offense charged or the penalty that could be imposed. Albright v. State, 253 Ark. 671, 488 S.W.2d 11 (1972) (decision under prior law).

Instructions.

Where, from the evidence it was clear that defendant broke into an occupiable structure and the only issue left for jury determination was intent, the trial court did not err by refusing to submit defendant's proffered instructions on breaking and entering. Barksdale v. State, 262 Ark. 271, 555 S.W.2d 948 (1977).

Intent.

If a man burglariously entered a house with intent to have connection with a woman while she was asleep, it was burglary. Harvey v. State, 53 Ark. 425, 14 S.W. 645 (1890) (decision under prior law).

In order to convict for burglary, evidence had to show that defendant entered building with intent to commit a felony. Sanders v. State, 198 Ark. 880, 131 S.W.2d 936 (1939) (decision under prior law).

Offense of burglary was complete even though intention to commit a felony was not consummated. Sanders v. State, 198 Ark. 880, 131 S.W.2d 936 (1939); Mouser v. State, 215 Ark. 131, 219 S.W.2d 611 (1949); Pope v. State, 216 Ark. 314, 225 S.W.2d 8 (1949); King v. State, 256 Ark. 778, 510 S.W.2d 876 (1974) (preceding decisions under prior law).

Evidence held insufficient to show the requisite intent. Hicks v. State, 231 Ark. 52, 328 S.W.2d 265 (1959) (decision under prior law).

Evidence that defendant had previously cut a window screen in an effort to effect entry for some unknown purpose was inadmissible to show intention of defendant for the unlawful entries upon trial. Hicks v. State, 231 Ark. 52, 328 S.W.2d 265 (1959) (decision under prior law).

Where the requisite intent could not be incontrovertibly established by defendant's actions in entries with which he was charged, evidence of a similar offense was admissible to show intent. Hicks v. State, 231 Ark. 52, 328 S.W.2d 265 (1959) (decision under prior law).

While it was not necessary in a prosecution to show that accused had tools with intent to commit a particular burglary, it was nevertheless proper in all cases to show felonious intent and any evidence legally bearing on felonious intent was admissible. Randall v. State, 239 Ark. 312, 389 S.W.2d 229 (1965) (decision under prior law).

Evidence held sufficient to show requisite intent. Scates v. State, 244 Ark. 333, 424 S.W.2d 876 (1968); Swanson v. State, 251 Ark. 147, 471 S.W.2d 351 (1971), cert. denied, Swanson v. Arkansas, 405 U.S. 996, 92 S. Ct. 1272 (1972) (preceding decisions under prior law).

Where there was sufficient evidence of requisite intent, it was reversible error to permit testimony of another burglary to show defendant's criminal intent. Swanson v. State, 251 Ark. 147, 471 S.W.2d 351 (1971), cert. denied, Swanson v. Arkansas, 405 U.S. 996, 92 S. Ct. 1272 (1972) (decision under prior law).

Circumstantial evidence held sufficient for the jury to conclude that defendant intentionally committed a theft or felony. Parris v. State, 270 Ark. 269, 604 S.W.2d 582 (Ct. App. 1980).

Defendant's conduct of approaching a locked gun cabinet in a store six times, walking around and behind the counter three times, looking back and forth several times times during his last venture behind the counter, removing a gun from the cabinet, and walking away was sufficient for the jury to conclude that he had the intent to commit a theft. Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001).

Lesser Included Offenses.

The offense of knowingly receiving stolen property was not a lesser offense of burglary. Pickens v. State, 236 Ark. 404, 366 S.W.2d 283 (1963) (decision under prior law).

Breaking and entering is a lesser included offense for burglary. Selph v. State, 264 Ark. 197, 570 S.W.2d 256 (1978).

Where there was no basis for acquitting defendant of burglary, while convicting him of breaking and entering or criminal trespass, the trial court was correct in refusing to instruct on the lesser included offenses of breaking and entering or criminal trespass. Grays v. State, 264 Ark. 564, 572 S.W.2d 847 (1978).

A person may be convicted of the offense of breaking or entering, as a lesser offense of burglary, whether a building is “occupiable” or not. Stultz v. State, 20 Ark. App. 90, 724 S.W.2d 189 (1987).

Ownership.

In prosecution for crime of burglary, it was not necessary to prove the ownership of the store burglarized. Pope v. State, 216 Ark. 314, 225 S.W.2d 8 (1949) (decision under prior law).

Product Dispenser, Etc.

Since under this section an electrical meter is not a “product dispenser” or a “similar container” a defendant cannot be charged with breaking or entering into an electrical meter. State v. Scarmardo, 263 Ark. 396, 565 S.W.2d 414 (1978).

A violation of this section occurs when a container of the sort described in the statute is sufficiently broken or altered so that the contents or inner works of the device become accessible to entry of any kind. Whether coins or money are actually removed is irrelevant. Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991).

Mere scratch marks on a machine do not constitute a violation of this section. Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991).

Proof.

In a prosecution for burglary in which it was charged that the defendant entered a building with intent to commit grand larceny, it was not necessary that the state show that the defendant stole and carried away money of the owner. Thompson v. State, 177 Ark. 1, 5 S.W.2d 355 (1928) (decision under prior law).

State had the burden of proving by circumstances or direct evidence that defendant made the unlawful entries charged in the information, with the specific intention of committing an assault with intent to rape. Hicks v. State, 231 Ark. 52, 328 S.W.2d 265 (1959) (decision under prior law).

Evidence was sufficient to convict defendant of breaking an entering automobiles when a victim described defendant and his vehicle and the police stopped defendant's vehicle while it was still within sight of the victim, there was no one else in the car, and the stolen property described by the victims was in defendant's car. Davis v. State, 2011 Ark. App. 561 (2011).

Separate Offenses.

Where defendant charged with both grand larceny and burglary, was found guilty only of burglary, conviction of burglary would be affirmed, as it was not necessary for conviction of burglary that he also be found guilty of grand larceny. Jackson v. State, 216 Ark. 341, 225 S.W.2d 522, 15 A.L.R.2d 484 (1949) (decision under prior law).

Convictions for burglary and breaking or entering were proper. Ward v. State, 20 Ark. App. 172, 726 S.W.2d 289 (1987).

Structure.

A fence comes within the meaning of the word “structure,” as used in this section. Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992).

Vehicle.

A railway car was the subject of burglary. Parnell v. State, 86 Ark. 241, 110 S.W. 1036 (1908) (decision under prior law).

Breaking or entering a vehicle for purposes of committing a theft under this section is not a violent felony for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C.S. § 924(e); thus, the ACCA was improperly applied to defendant's sentence for violation of 18 U.S.C.S. § 922(g), (j), and his sentence was vacated. United States v. Livingston, 442 F.3d 1082 (8th Cir. 2006).

Cited: Jones v. State, 270 Ark. 328, 605 S.W.2d 7 (1980); Tolley v. State, 1 Ark. App. 1, 611 S.W.2d 798 (1981); Garrison v. State, 13 Ark. App. 245, 682 S.W.2d 772 (1985); Moser v. State, 287 Ark. 105, 696 S.W.2d 744 (1985); Evans v. State, 287 Ark. 136, 697 S.W.2d 879 (1985).