ON PETITION FOR REHEARING March 6, 1940. OPINION Section 2078 N.C.L. 1929, being section 9 of an act concerning district attorneys (Stats. of Nevada 1865, p. 386), provides that the district attorney "shall, on the first Mondays of May, August, and November, in each year, file in the office of the county treasurer an account in writing, certified by oath, of all moneys received by him in his official capacity during the preceding three months, and shall, at the same time, pay it over to the county treasurer."
The third count of the information under which appellant was convicted is set forth in full in our original opinion (Wood v. State, 59 Nev. 445, 96 P.2d 441. Appellant contends that even if all the allegations of this count be taken as literally true, it fails to state facts sufficient to constitute a public offense, for the reason that the statute did not require him to pay the moneys in question into the treasury until November 1933.
The respondent takes the position that said objection was waived by failure to demur in the trial court. The state also claims that, aside from the question of waiver, said third count does state facts sufficient to constitute a public offense. The further contention is made by the state that section 2078 N.C.L. 1929 does not apply to accounting of tax moneys by district attorneys. In support of this last proposition respondent cites Statutes of Nevada 1933, chap. 171, p. 235; section 6439 N.C.L. 1929, and section 6469 N.C.L. 1929.
1. The petition must be denied for the reason that the point upon which it is based was raised for the first time on petition for rehearing. The contention that the *Page 460 third count does not state facts sufficient to constitute a public offense was not made at all in the trial court. It was made for the first time on appeal, and then only in oral argument after the briefs had been filed. At that time appellant's objection to the sufficiency of the third count was based solely upon the ground that it was not the duty of district attorneys, nor was there any statute authorizing them, to collect taxes or receive tax money. After an adverse decision affirming the judgment and order appealed from, appellant now for the first time makes the contention that the third count does not state sufficient facts for the reason that, under the statute, it was not his duty to pay money into the treasury at the time he is alleged to have failed and neglected to make such payment.
2. It has been decided by this court many times that questions raised or the first time on petition for rehearing will not be considered, and the rule applies in criminal as well as in civil cases. State v. Gee Jon, 46 Nev. 418, at 439, 217 P. 587; 3 Am. Jur. 351, sec. 806, n. 17.
Petition denied.