An attempt to have the fatal arson case against two defendants dismissed Thursday failed as their trial appeared to be winding down.

Attorneys for Peter Delaney and Jill Smith, who are being tried in connection with the October 2010 death of her husband at the family’s house in south Forsyth, continued presenting their case Thursday.

Smith and Delaney pleaded not guilty to the charges — one count each of murder, felony murder and first-degree arson — in March and their trial began Feb. 15.

In seeking the dismissal, Rafe Banks, who represents Delaney, argued that the prosecution failed to present evidence excluding the possibilities that the fire was accidental, the result of an intentional act by Smith’s husband, Michael, or caused by Jill Smith’s 10-year-old son.

Banks contended the state produced speculation that because the defendants were present at the time of the fire, they must’ve done it.

He added that there’s no doubt that the state has “done a wonderful job proving adultery,” referring to the affair between his client and Jill Smith during her marriage.

However, he said that the affair was not equivalent to murder and that Michael Smith’s death was a tragedy.

“Every time something bad happens it is not a crime,” Banks said.

Kyle Epps, one of the attorneys representing Smith, added that Forsyth County Fire Lt. Debbie Lindstrom, who investigated the matter and testified as a state’s witness, was inexperienced and could not reach a conclusion with confidence that the fire was incendiary.

He said Forsyth County Sheriff’s Investigator Sebastian Strano testified that in more than 30 hours of interviews, Jill Smith had not confessed.

Furthermore, he said no evidence had been presented showing which defendant, if either, started the fire. The possibility the blaze resulted from a lit candle has not been excluded.

“If there ever was a case in Forsyth County that demanded the court intervene to prevent an unjust verdict it’s right here,” Epps said in asking for an acquittal.

Forsyth County District Attorney Penny Penn countered that the state had been putting up evidence of guilt against the defendants throughout the trial.

She noted that a witness who tested samples from the blaze was certain she had found evidence of gasoline in the sample.

“Arson is the murder weapon here those defendants used to commit the malice murder of Mr. Smith,” Penn said.

She went on to say that there was no evidence that Michael Smith, who had made plans for the next day with a friend, was suicidal. The evidence, she said, shows the fire was no accident.

She also said there was nothing to indicate that Jill Smith’s son was responsible for the blaze or was “some sort of firebug, devil child … that’s just a silly notion.” The boy “adored” his stepfather.

“We have … more than sufficient evidence that this fire was intentionally set,” Penn said.

In making his decision to not dismiss the case, Forsyth County Superior Court Judge David L. Dickinson said the burden is on the state to present evidence that shows the facts are consistent with their hypothesis and excludes other possibilities.

He said sufficient evidence had not been presented that Michael Smith committed suicide. Testimony, some of which included that Smith had a blood alcohol level of .14 and a low level of an anti-anxiety medication in his blood, revealed he was incapacitated and his wife had put him to bed that night.

He added that Lindstrom had testified the fire was set. He also referred to testimony from Jill Smith’s son about his whereabouts and activities that night, saying the boy had undisputedly been in his bedroom.

Earlier in the trial, two Forsyth County firefighters who responded to the blaze testified.

They said that when they arrived, smoke and flames were coming out of the master bedroom upstairs and that Michael Smith was found crouched on the floor of the master bathroom.

The master and boy’s bedrooms are on the same floor of the house.