¶1 (dissenting). I do not concur with the majority as to the function of the trial court in passing upon motions for change of venue. I agree that “discretion” does not correctly describe it. I agree also that “it is a plain and ordinary judicial determination of a fact.” But what fact? As I understand, the majority hold that the fact to be determined is merely whether two disinterested persons, having a general knowledge of conditions, do, in good faith, believe in the existence of one of the conditions set forth in the statute and entitling the moving party to the change. I find myself unable to yield the view that the fact to be determined is whether such condition exists. This I think results from correct interpretation of the statute and application of principles to which this court is committed.
¶2 In my opinion, the trial judge, in claiming a “discretion,” merely employed the word in the loose sense which the majority criticize, and for which this court is responsible. It is a familiar principle that findings are to be liberally construed in support of the judgment or action taken. Certainly the trial judge did not intend to record that he arbitrarily denied a right to which appellant had shown himself entitled. He simply held that the specific facts alleged and proven were insufficient to support the conclusions of popular prejudice and of the impossibility of obtaining an impartial jury in Bernalillo county.
¶3 So I feel constrained to dissent.