On Application for Rehearing.
STAKELY, Justice.Our attention has been called to the fact that the appellee’s brief on the original *88submission was filed sixteen days after submission of the cause. We are asked in accordance with Supreme Court Rule 38, Code 1940, Tit. 7 Appendix, to disregard the application for rehearing filed by the appellee. We have a discretion, however, in applying Rule 38, Metropolitan Life Ins. Co. v. Magouirk, 31 Ala.App. 5, 11 So.2d 462, certiorari denied 243 Ala. 626, 11 So.2d 466, and feel that the ends of justice would be better served if we consider the application for rehearing.
We say this because it is claimed by the appellee in brief to support the application for rehearing that we should not have given consideration to the affirmative charge because the certificate of the court reporter does not show that the transcript contains all the evidence. We quite agree that the affirmative charge should not be considered in the absence of a showing that the transcript contains all the evidence. This proposition was not called to our attention on the original hearing. However, we point out that the certificate of the court reporter does not merely state that it is a correct copy “of the proceedings as therein set out” as contended by the appellant. On the other hand the certificate of the court reporter is as follows:
“I, Ray C. Wester, do hereby certify that I reported in shorthand the proceedings in the above styled cause at the time and place stated in the caption hereof, and that I later reduced my shorthand notes to typewriting, or under my supervision, and the foregoing pages beginning with the word ‘Proceedings’ where the same appears in the center of the page, following the style of the case, the caption and the appearances, contain a full, true and correct transcript of the proceedings as therein set out.
“I further certify that I have on this day notified counsel of the filing of this transcript in the office of the Clerk of the Tenth Judicial Circuit of Alabama.”
Since the certificate shows that the transcript contains “a full, true and correct transcript of the proceedings as therein set out”, we take it that the transcript does contain all of the evidence.
But it is further argued that the transcript on its face shows that it does not contain all the evidence because a rough draft diagram which the attorneys for the appellee drew on the blackboard during the testimony of Police Officer Ben McCleskey, has not been certified to this court. We call attention to the fact that the diagram was not introduced in evidence and was not marked as an exhibit. In commenting on the use of a diagram this court in Crocker v. Lee, 261 Ala. 439, 74 So.2d 429, 435, had this to say:
“The use of a map, drawing, or plat for purposes of illustration must be distinguished from its admission in evidence. In the latter case the instrument possesses within itself evidential characteristics tending to establish a particular fact. In the former case the testimony of the witness is the evidence and the map or diagram is merely an aid to its understanding. * * * ”
Furthermore the testimony of the witnesses 'McCleskey and Howell contain such specific statements of fact as to location of streets, buildings and distances in figures that it is readily discernible from the record as to what actually happened. Henley v. Lollar, 35 Ala.App. 182, 44 So.2d 791.
The application for rehearing is overruled.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.