“Particulars on Varnet’s research were sent today to the camp physician of Weimar-Buchenwald for his information.”
There is evidence that during the summer of 1944 Dr. Varnet conducted the experiments referred to in Poppendick’s letter. However, the nationality of the prisoners used for the experiments is not shown, nor has it been proved beyond a reasonable doubt that the experiments were harmful or caused death, or injury to the experimental subjects.
We have given careful consideration to the evidence concerning the charges made by the prosecution against the defendant Poppendick. Certainly the evidence raises a strong suspicion that he was involved in the experiments. He at least had notice of them and of their consequences. He knew also that they were being carried on by the SS, of which he was and remained a member.
But this Tribunal, however, cannot convict upon mere suspicion; evidence beyond a reasonable doubt is necessary. The evidence is insufficient to sustain guilt under counts two and three of the indictment.
MEMBERSHIP IN A CRIMINAL ORGANIZATION
The defendant Poppendick is charged with membership in an organization declared criminal by the judgment of the International Military Tribunal, namely, the SS. Poppendick joined the SS in July 1932. He remained in the SS voluntarily throughout the war, with actual knowledge of the fact that that organization was being used for the commission of acts now declared criminal by Control Council Law No. 10. He must, therefore, be found guilty under count four of the indictment.
With reference to the nature of punishment which should be imposed under such circumstances, the International Military Tribunal has made the following recommendation:
“1. That so far as possible throughout the four zones of occupation in Germany the classifications, sanctions, and penalties be standardized. Uniformity of treatment so far as practical should be a basic principle. This does not, of course, mean that discretion in sentencing should not be vested in the Court; but the discretion should be within fixed limits appropriate to the nature of the crime.
“2. Law No. 10 * * * leaves punishment entirely to the discretion of the trial court even to the extent of inflicting the death penalty.
“The De-Nazification Law of 5 March 1946, however, passed for Bavaria, Greater Hesse, and Wuerttemberg-Baden, provides definite sentences for punishment in each type of offense. The Tribunal recommends that in no case should punishment imposed under Law No. 10 upon any members of an organization or group declared by the Tribunal to be criminal exceed the punishment fixed by the De-Nazification Law. No person should be punished under both laws.”