If the tom is tree hopping to the call then I would shoot him. If he is roosted and had not flown down or just flown up then absolutely not.
I will admit I had one bird a couple years ago that flew over the top of me and landed in the tree early. I had been on the bird for three hours and he was 60 yards from me. I was ready to shoot when he got in range and he flew in the tree. I put the gun on him but could not pull the trigger. I did however kill him the next day about 4:00 pm.
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