Whether the- plaintiff in error, Rial H. Watkins, fought in self defence, was a question of fact purely for the jury to determine from all the circumstances of the case. Facts or circumstances conducing to show that at the time Gas-ton was arising from his seat, using profane and boisterous language, with a slick in his hand, he intended to make an assault upon Watkins, are legitimate as proof. It appears that Gaston had become offended with Watkins, on account of the evidence which he had given on a trial some ten days previous to the fight, and had threatened to whip him; that on the day of the fight Watkins had again been examined on the same matter, and after the trial having been informed of Gaston’s threat and that he had charged him with larceny, he approached where Gaston was sitting and said to him “you have said things here to-day that, you canno.t stand up to,” whereupon Gaston cursed him and told him to go away from them or he would make him, and as he said this, he attempted to rise with a stick in his hand, but before he had gotten entirely up, Watkins struck and knocked him down. The court excluded the evidence of the threat made a week or ten days before the fight. This was clearly an error. The threat, it is true, may have been a weak circumstance to show that in rising at the time he was stricken Gaston intended an assault and battery upon Watkins, making it necessary for him in self defence to strike, but still it was a circumstance tending to show this, and that it was inconclusive, was an objection to its sufficiency, not to its admissibility. It was explanatory to some extent of the act, and being connected with it, should have gone to the jury to be weighed by them.

As to the declaration of Ogletree, it is too clear to admit of argument that it was proper testimony. James Watkins is implicated as keeping persons from separating the combatants, as well *667as for striking himself. Ogletree is one of the persons whom it is said he prevented, and he should have been allowed to prove by the declarations of Ogletree, coupled with his act, and explanatory of it, that he was really, instead of attempting to part the combatants, about himself to engage in the fight to whip the defendant Rial. The plaintiff below proved the interference of Ogletree and connected James Watkins with it as preventing him. He says, (but was not permitted to show) that he did not interfere to prevent Ogletree from stopping the difficulty, for the language used by Ogletree, at the time he was about to interfere, was not indicative of a peace-maker, but showed he intended to aid in the fight, and that he merely kept him from fighting. This was most certainly a circumstance in mitigation. These are such plain propositions that we scarcely deem it necessary to cite authority for them.

In respect to the previous threat of Gaston, taken in connection with his conduct, it was a circumstance, as we have said, tending to show whether, when Watkins struck him, he had just reason to fear a serious injury to his person. — State v. Goodrich, 19 Ver. Rep. 120-1. As to the declaration of Ogletree, it was a part of the res gesta and therefore admissible. — 1 Greenl. Ev. § 108; and authorities on the brief.

Let the judgment be reversed and the cause remanded.