SAPULPA, Okla. — An arson charge has been dismissed against a Bristow man who allegedly tossed a lit cigarette to the ground during a burn ban and started an August 2012 fire that burned 91-square-miles in Creek County and destroyed nearly 400 homes.

The charge against 40-year-old Billy Cloud was dismissed Friday after a prosecutor said two witnesses failed to appear for a scheduled preliminary hearing.

“Well, the first law of evidence is you have to have some,” said Creek County Assistant District Attorney Michael Loeffler, “today we had two material witnesses under subpoena that didn’t appear, and we didn’t have any evidence to go forward.”

Defense attorney Matthew Gore released a statement that said his client had been looking forward to proving his innocence at trial.

“We have a criminal justice system that is structured to prevent innocent people like Mr. Cloud from being tried for criminal charges without a minimum amount of evidence to support those charges,” Gore said. “Now that charges have been dismissed Mr. Cloud has nothing more to do. In the event the state proceeds by refiling charges we are very confident those charges will also be dismissed on similar and additional grounds.”

Loeffler said prosecutors will consider bringing the charge back.

“We’ll look on Monday to see if we have time and ability to re-file the case at a later time,” said Loeffler.

A probable cause affidavit in the case said a neighbor alleged Cloud ran up to her home and told her a fire began after he flicked a cigarette. The document said Cloud was with family members and tried unsuccessfully with his cousins to put out the fire.

He was charged Sept. 19, 2012, with arson, or in the alternative, unlawful burning, but wasn’t arrested until six months ago when U.S. marshals and Creek County deputies were conducting a warrant sweep and found him.

Creek County Sgt. Les Vaughan said after Cloud’s arrest that authorities had been actively looking for him since he was charged, but found it “extremely difficult” to find him.

The fire burned for about a week, scorching about 58,500 acres and destroying 376 homes. Investigators said they determined the fire’s point of origin was in front of Cloud’s home and took a cigarette butt as evidence.